How The Law Failed At Guantánamo – OpEd
Just five days ago, on July 11, the prison at Guantánamo Bay marked another sad and unjustifiable milestone in its long history — nineteen and a half years since it first opened on January 11, 2002.
From the beginning, Guantánamo was a project of executive overreach — of the US government, under George W. Bush, deciding, after the 9/11 attacks, that the normal rules governing the imprisonment of combatants during wartime should be swept aside. The men who arrived at Guantánamo were deprived of the protections of the Geneva Conventions, and were designated as “unlawful enemy combatants,” who, the Bush administration claimed, could be held indefinitely. For those who were to be charged with crimes, the Bush administration revived the military commission trial system, last used for German saboteurs in the Second World War, deciding that acts of terrorism — and even some actions that were a normal part of war, such as engaging in firefights — were war crimes. The result was that soldiers came to be regarded as terrorists, and alleged terrorists came to be regarded as warriors, with the former denied all notions of justice, and the latter provided only with a legal forum that was intended to lead to their execution after cursory trials.
The mess that ensued has still not been adequately addressed. Nearly two and a half years after Guantánamo opened, the Supreme Court took the unusual step of granting habeas corpus rights to wartime prisoners, having recognized that the men held had no way whatsoever to challenge the basis of their imprisonment if, as many of them claimed, they had been seized by mistake. That ruling, Rasul v. Bush, allowed lawyers into the prison, to begin preparing habeas corpus cases, but on the same day, in another ruling, Hamdi v. Rumsfeld, the Supreme Court essentially approved Guantánamo as the venue for the exercise of a parallel version of the wartime detention policies of the Geneva Conventions, ruling that prisoners could be held until the end of hostilities — an unwise move, given that the Bush administration regarded its “war on terror” as a global war that ignored geographical context, and could last for generations.
Separately, the CIA had been empowered to muddy the waters still further by holding suspected “high-value” prisoners in “black sites,” secret prisons foisted on compliant regimes around the world, where they were subjected to torture programs that, in defiance of international and domestic law, had been approved by lawyers working in the Justice Department’s Office of Legal Counsel (OLC), the legal body charged with providing objective legal opinions to the executive branch. A third Supreme Court ruling in June 2006, Hamdan v. Rumsfeld, overturned the military commissions as unlawful, while also reminding the Bush administration that Common Article 3 of the Geneva Conventions — prohibiting the use of torture and “cruel, humiliating and degrading treatment” — applied to all prisoners under US control. The “black sites” subsequently closed, and 14 “high value detainees” were brought to Guantánamo, where a revived version of the commissions, approved by Congress, was supposed to provide a fairer forum for their subsequent prosecutions.
The Supreme Court’s fourth and — to date — final ruling regarding Guantánamo came in June 2008, in Boumediene v. Bush, as a result of Congress responding to Rasul v. Bush, four years earlier, by passing legislation designed to prevent the prisoners from exercising their habeas rights. The Court ruled that Congress had acted unconstitutionally, and granted the prisoners constitutionally guaranteed habeas corpus rights.
Fast forward to 2021, and, sadly, Guantánamo largely remains a lawless place. Boumediene v. Bush led to a two-year period in which judges were able to objectively review the government’s purported evidence against the prisoners, deciding, in 38 cases, that the government had failed to demonstrate, even with a low evidentiary standard, that the men in question had any meaningful connection to either al-Qaeda or the Taliban, and ordering their release. Shamefully, politically motivated appeals court judges subsequently changed the rules, overturning six of those decisions, and eventually shutting down habeas corpus for the prisoners by ordering judges to regard all the government’s evidence — however risible — as presumptively accurate, and in the years since the Supreme Court has turned down numerous opportunities to take back control.
As for the military commissions, 12 prisoners have been through the process — two via trials, and six via plea deals — although many of these were overturned on appeal, on the predicted basis that Congress had invented the war crimes for which they were convicted. Meanwhile, the “high-value” trials — including those of five men accused of involvement in the 9/11 attacks — are mired in seemingly endless pre-trial hearings, as the government tries to suppress all mention of the torture to which the men were subjected, while the defense teams insist that exposing that torture is the only way that anything resembling fair trials can proceed.
These are my thoughts nineteen and a half years since the opening of the prison at Guantánamo Bay, and they were meant to provide an introduction to an important article that was recently published in the Atlantic, written by Benjamin Farley, an attorney with the defense team for Ammar al Baluchi, one of the five men accused of involvement in the 9/11 attacks. Farley’s article is entitled, “The Fairy Tale America Likes to Tell Itself,” and I’m cross-posting it below, because it provides a powerful insider account of how the law has failed at Guantánamo, and, importantly, what President Biden can do about it, if he is sincere in his desire to see Guantánamo closed.
I hope you have time to read Farley’s article in its entirety, as it reaches places and provides details that my own efforts cannot accomplish, and I hope that President Biden will listen to his conclusions about what now needs to be done to restore the rule of law. Firstly, he urges the closure of Guantánamo, and the immediate release of the 28 men still held , out of 40 in total, who have not been charged. Secondly, he calls for plea deals to be negotiated for the ten men currently facing trials. Thirdly, he calls for the full Senate Select Committee on Intelligence’s report on rendition and interrogation (the CIA torture report) to be released, and, fourthly, and innovatively, he calls on the Biden administration to avoid any possible reprise of the calamitous mistakes of the last two decades by “conven[ing] an international conference that aims to articulate the laws of war applicable to non-international armed conflicts.”
“The Fairy Tale America Likes to Tell Itself,” by Benjamin R. Farley, The Atlantic, June 29, 2021
