Closing Gitmo Isn’t Nearly Enough

Once again we hear calls to close Guantánamo’s prison camp. Every once in a while, Americans see reminders of this detention facility in the news cycle. Months ago, we heard about the hunger strike, yet it was scarcely in the national headlines early in Obama’s presidency, when I first read about it, and today we hear much less about it, although it continues.

The president is taking steps, five years into his administration, toward the promise he had made to close the facility by the end of his first year. But what does that actually mean? In practice, it means transferring the inmates to another prison. Indeed, this was Obama’s idea all along. Several years ago he floated the idea of a Gitmo Lite somewhere in the Midwest, much to the horror of those who think any superficial change toward leniency in the war on terror is a victory for al Qaeda.

But here’s one of the most troubling things, which Americans don’t seem to want to confront: Most of those Guantánamo detainees are totally innocent of terrorism. This was always true. Of the nearly eight-hundred detainees in total, about three-fourths have already been released, mostly through executive decision, and mostly because there was no evidence they were terrorists.

Of the initial number, most were rounded up by the Northern Alliance or Pakistani warlords. In Pakistan, the U.S. government dropped leaflets that encouraged the round up of as many poor schmucks as possible. They read

You can receive millions of dollars for helping the anti-Taliban force catch al Qaeda and the Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life—pay for livestock and doctors and school books and housing for all your people.

As late as October 2007, 370 detainees at Guantánamo had been turned over to U.S. forces for rewards—$5,000 each for alleged Taliban and $25,000 each for alleged al Qaeda.

Today, a lot of innocent people remain because the administration simply finds it inconvenient to let them go. As of last year, 87 out of 169 remaining detainees had been cleared for release by the administration’s own task force. Forty of them were cleared for release over five years before, mostly under the Bush administration.

After the 2008 Boumediene v. Bush decision, in which the Supreme Court ruled that habeas corpus extended as a matter of constitutional right to the Guantánamo prison camp, there were a few years that historian Andy Worthington has called “a golden period for accountability, as, between October 2008 to July 2010, 38 out of 52 prisoners won their habeas corpus petitions.”

In 2010 the D.C. Court of Appeals overturned a Yemeni detainee’s release in al-Adahi v. Obama, reversing this trend. Before that, 56% of 34 Guantánamo detainees had won their cases in District Court. After the al-Adahi ruling, only Adnan Latif, who was captured in on the Afghan-Pakistan border in 2001, won release in District Court, and this was quickly overturned by the D.C. Circuit in 2011. As of November 2011, eighty-nine detainees recommended for release by the Guantánamo Task Force nearly two years before remained in detention. (For sources on these and some of my other claims, see my book, The Power of Habeas Corpus in America.)

Adnan Latif, an injured man who was almost certainly innocent, who was cleared for release by both Bush and Obama administration determinations, as well as by a federal court, was kept incarcerated thanks to the Circuit Court and the Obama Justice Department. He was found in his cell, apparently having committed suicide. Nothing must be as dispiriting as being locked away in a dungeon for over ten years, told repeatedly you will be released, and then told you won’t be. Latif was the third Gitmo inmate in a row who left the prison facility dead.

To make the long story short, the releases have slowed to a halt under Obama. We need to examine a few of the rationales being used to keep these people imprisoned, and consider the deeper principles involved.

The administration claims some people can’t be released, even though any evidence against them is tainted, usually because of a tortured confession. There is no legal way to try them. Well, in anything resembling a free and just society, when a state tortures someone and messes up the chance at due process, the only possibly moral thing to do is let them go.

A lot of these people are Yemenis whom Obama doesn’t want to release back to their home country because of international politics. Well, I say, buy them homes in Washington, DC. Perhaps right on Pennsylvania Avenue. If anyone deserves something back from the U.S. government, it is surely those who have been torturously detained for a decade.

Some of the fear in releasing prisoners is, even if they were innocent before, now they are angry at their treatment and might strike back. Well, tough. The same was true of many of the 100,000 prisoners captured during the Iraq war, almost all of whom were released. Why do we never hear about them? Because it’s not as conspicuous an example of the U.S. government’s horrendous folly. The Bush people invested a lot in labeling Guantánamo’s prisoners “the worst of the worst.”

Some of these people might have committed violence against US-allied forces, but that’s no reason to regard them as “terrorists.” Traditionally, captured soldiers are treated as prisoners of war and released when the war is over. The government can’t get away with claiming this war never ends and so it can hold people forever. If the U.S. released all those prisoners in Iraq—indeed, if the U.S. released captured Nazi soldiers after World War II—surely some Taliban fighters are no worse. We must keep in mind that the first “terrorist” tried by military commission under Obama was Omar Khadr, captured as a child soldier, gravely injured, tortured, and threatened with rape. By no stretch was Khadr a “terrorist.” He was just fighting against a government that had invaded his country.

This is what must be done—and it’s no perfect solution; it only gets us part of the way toward something remotely resembling justice. Everyone at Guantánamo for whom there is not clear evidence that they committed terrorism—not fighting on the battlefield, but planning and carrying out terrorist attacks on non-combatants—must be released immediately, and should be compensated enough to find adequate living conditions where they can find a place to move, including within the United States, which should grant them full legal rights to live here.

Anyone who is an actual terror suspect—there are only a handful—should, at the very most, go through a civil trial, with all the bells and whistles, the normal standard of evidence, and rights to confront their accusers and call witnesses and all the rest. If you believe in the system of government justice, this is what you should favor—due process and civil prosecution. In a fairer world, the same could be afforded to those in the Bush and Obama administrations who have actively deprived so many people of their basic rights.

Guantánamo’s prison system should be razed to the ground and the United States’s claim to that base renounced, as it was itself an ugly consequence of American imperialism in the Spanish-American war. The horrible offenses against human rights that occurred should forever bar U.S. power from having any say there.

The entirely of U.S. detention policy must be radically reshaped. No more detentions of any kind that don’t fall within the jurisdiction of habeas corpus and robust judicial oversight. The state and federal courts both have a proper role to play. The NDAA provisions allowing for indefinite detention of citizens must be abolished. The U.S. should stop its wars abroad that lead to so many captives in the first place.

This is not perfect, but it would be a start. Then we can examine the horror of America’s domestic prisons as well.