Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a "meaningful" opportunity to contest the legality of their detention. The DOJ recently informed a lawyer for a Yemeni detainee, Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he agreed to a new regime of restrictive rules, including acknowledging that such visits are within the sole discretion of the camp’s military commander. Moreover, as SCOTUSblog’s Lyle Denniston explains:
Besides putting control over legal contacts entirely under a military commander’s control, the "memorandum of understanding" does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client.
The New York Times Editorial Page today denounced these new rules as "spiteful," cited it as "the Obama administration’s latest overuse of executive authority," and said "the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing." Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees’ right to legal counsel.
But every time the issue of ongoing injustices at Guantanamo is raised, one hears the same apologia from the President’s defenders: the President wanted and tried to end all of this, but Congress — including even liberals such as Russ Feingold and Bernie Sanders — overwhelming voted to deny him the funds to close Guantanamo. While those claims, standing alone, are true, they omit crucial facts and thus paint a wildly misleading picture about what Obama actually did and did not seek to do.
What made Guantanamo controversial was not its physical location: that it was located in the Caribbean Sea rather than on American soil (that’s especially true since the Supreme Court ruled in 2004 that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty — and what still makes it such — is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama’s so-called "plan to close Guantanamo" — even if it had been approved in full by Congress — did not seek to end that core injustice. It sought to do the opposite: Obama’s plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.
Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. President Obama fully embraced indefinite detention — the defining injustice of Guantanamo — as his own policy.
In February, 2009, the Obama DOJ told an appellate court it was embracing the Bush DOJ’s theory that Bagram detainees have no legal rights whatsoever, an announcement that shocked the judges on the panel hearing the case. In May, 2009, President Obama delivered a speech at the National Archives — in front of the U.S. Constitution — and, as his plan for closing Guantanamo, proposed a system of preventative "prolonged detention" without trial inside the U.S.; The New York Times – in an article headlined "President’s Detention Plan Tests American Legal Tradition" – said Obama’s plan "would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free." In January, 2010, the Obama administration announced it would continue to imprison several dozen Guantanamo detainees without any charges or trials of any kind, including even a military commission, on the ground that they were "too difficult to prosecute but too dangerous to release." That was all Obama’s doing, completely independent of anything Congress did.
When the President finally unveiled his plan for "closing Guantanamo," it became clear that it wasn’t a plan to "close" the camp as much as it was a plan simply to re-locate it — import it — onto American soil, at a newly purchased federal prison in Thompson, Illinois. William Lynn, Obama’s Deputy Defense Secretary, sent a letter to inquiring Senators that expressly stated that the Obama administration intended to continue indefinitely to imprison some of the detainees with no charges of any kind. The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.
Recall that the ACLU immediately condemned what it called the President’s plan to create "GITMO North." About the President’s so-called "plan to close Guantanamo," Executive Director Anthony Romero said:
The creation of a "Gitmo North" in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.
Alarmingly, all indications are that the administration plans to continue its predecessor’s policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it’s occurring in Cuba or in Illinois.
In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one’s accusers. . . . .The Obama administration’s announcement today contradicts everything the president has said about the need for America to return to leading with its values.
In fact, Obama’s "close GITMO" plan — if it had been adopted by Congress — would have done something worse than merely continue the camp’s defining injustice of indefinite detention. It would likely have expanded those powers by importing them into the U.S. The day after President Obama’s speech proposing a system of "prolonged detention" on U.S. soil, the ACLU’s Ben Wizner told me in an interview:
It may to serve to enshrine into law the very departures from the law that the Bush administration led us on, and that we all criticized so much. And I’ll elaborate on that. But that’s really my initial reaction to it; that what President Obama was talking about yesterday is making permanent some of the worst features of the Guantanamo regime. He may be shutting down the prison on that camp, but what’s worse is he may be importing some of those legal principles into our own legal system, where they’ll do great harm for a long time.
So even if Congress had fully supported and funded Obama’s plan to "close Guantanamo," the core injustices that made the camp such a travesty would remain. In fact, they’d not only remain, but would be in full force within the U.S. That’s what makes the prime excuse offered for Obama — he tried to end all of this but couldn’t – so misleading. He only wanted to change the locale of these injustices, but sought fully to preserve them.
Indeed, as part of that excuse, one frequently hears that even liberal civil liberties stalwarts in the Senate — such as Russ Feingold and Bernie Sanders — voted to deny funding for the closing of Guantanamo: as though it is they who are to blame for these enduring travesties, rather than Obama. But this, too, is misleading in the extreme.
The reason these Democratic Senators voted to deny funds for closing Guantanamo is not because they lacked the courage to close Guantanamo. It’s because they did not want to fund a plan to close the camp without knowing exactly what Obama planned to do with the detainees there — because people like Feingold and Sanders did not want to fund the importation of a system of indefinite detention onto U.S. soil. Here’s what actually happened when the Senate, including most Democrats, refused to fund the closing of Guantanamo:
[White House Press Secretary Robert Gibbs] added Obama has not yet decided where some of the detainees will be sent. A presidential commission is studying the issue. . . .
Sen. Daniel Inouye, D-Hawaii, chairman of the Appropriations Committee, favors closing Guantanamo, and the legislation his panel originally sent to the floor provided money for that purpose once the administration submitted a plan for the shutdown.
In changing course and seeking to delete the funds, he said, "The fact that the administration has not offered a workable plan at this point made that decision rather easy."
Can that be any clearer? They would have voted to fund the closing of Guantanamo, but only once they knew what Obama’s plan was for the detainees there. Feingold — whose vote against funding the closing of Guantanamo is invariably cited by Obama defenders — wrote a letter to the President specifically to object to any plan to import the system of indefinite detention onto U.S. soil:
My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.
Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.
Feingold was not going to vote for a plan to close Guantanamo if it meant that its core injustice — indefinite detention — was going simply to be re-located onto American soil, where it would be entrenched rather than dismantled. That, as all of this evidence makes clear, is why so many Democratic Senators voted to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely because they did not want to fund its continuation on American soil, as Obama clearly intended.
Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees — including the basic right to legal counsel — are being constricted further, in plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003, and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real stain of Guantanamo — keeping people locked up in cages for years with no charges — endures. And contrary to the blatant myth propagated by Obama defenders, that has happened not because Obama tried but failed to eliminate it, but precisely because he embraced it as his own policy from the start.