President Obama unveiled a formal plan this week to finally close the notorious Guantanamo Bay detention camp by the end of his term, a goal he no doubt believes is central to his legacy. Yet, despite the seeming clarity of the plan's four planks and the president's inimitably authoritative delivery, the plan – like so much of our nation's sordid history in Guantanamo – ignores several important realities.
For one, the plan obscures Obama's earlier promise. Recall that on his first day in office, more than seven years ago, the president pledged to shutter the prison within one year. This promise was based on an election campaign that rightly recognized the deep injustice of the place – braided as its identity was with torture, arbitrary detention and the worst excesses of the Bush administration's post-9/11 response. Indeed, the Bush administration deliberately located the detention camp in Guantanamo for the purposes of evading any law – one of the clearest historical examples of raw executive power displacing elementary constitutional and human rights principles. Guantanamo, Obama argued, is not who we are. Now that the prison has endured longer on his watch than his predecessor's, what happened of his promise?
Obama is quick to fault congressional opposition, and no doubt its frequently craven national-security grandstanding and reflexive obstructionism made his mission more difficult, but much of the blame ultimately falls on the administration itself.
For example, the Obama administration stood by, and continues to promote as part of its closure plan, trials of 9/11 conspirators through a fundamentally unjust and practically unworkable military commission system — rather than fair, constitutional trials — which are largely preordained to secure convictions. This administration has failed to criminally prosecute any Bush administration officials for torture and war crimes so thoroughly documented in the 2014 Senate Select Intelligence Committee report on torture, and it has sought to dismiss any and all civil rights cases seeking accountability for human rights abuses committed in the War on Terror.
The Obama administration defended the legal positions of its predecessor, fighting tooth and nail against meritorious habeas corpus petitions brought by detainees. This has produced, in the very conservative D.C. circuit that hears such petitions, a legal landscape that authorizes indefinite detention on the thinnest of guilt-by-association pretexts and has eviscerated the possibility of "meaningful review" of a prisoner's detention that had been promised by the Supreme Court in its then-landmark Boumediene v. Bush decision.
And, for years, the administration has failed to exercise the ample legal authority it always retained to repatriate or resettle (to third countries) the majority of detainees – those who have been cleared for release through a unanimous interagency process concluding it serves no purpose to continue the detention. Consider Center for Constitutional Rights' client Muhammadi Davliatov. Six years ago, a federal court stayed his habeas corpus petition at the Obama administration's request (and over Davliatov's objection), because, the government told the court, he would be promptly released. Today, Davliatov continues to languish at Guantánamo.
Thus, this administration has perpetuated indefinite detention – legally and practically. As a result, the closure plan also obscures the immense suffering of human beings – most of whom were swept up in the wrong place at the wrong time – who have endured up to 14 years of imprisonment without trial or conceivable end date, away from home and loved ones. Consider the situation of another CCR client, Tariq Ba Odah, who made a promise even before President Obama did. Having been cleared for release, but with no prospect of actual release, he committed to a hunger strike as a means of peacefully protesting — through the only thing under his control — the cruelty and arbitrariness of his detention. As he explained to us, "My method of delivering my message is through hunger strike. You can cut me to pieces, but I will not break it. I will stop on one of two conditions: I die, or I am freed and allowed to return to my family." He has maintained his silent protest for longer than Obama has been president, enduring punitive solitary confinement for 23 hours a day as well as violent and painful force-feeding through nasal intubation every day for eight years.
Suffering the ravages of starvation, Ba Odah is now mortally sick; his skeletal body weighs in at 75 pounds. But, when CCR filed an emergency petition with the court seeking his release on humanitarian law grounds that prohibit the continued detention of gravely sick detainees, the administration reflexively opposed this humane – and legal – request, so as not to weaken in any way its authority to detain other prisoners, even sick and aging ones. The closure plan thus does not reveal the perverse logic of the administration's legal posture: It seeks to preserve authority to detain Ba Odah and keeps him alive through force-feeding, all so it can continue to detain him indefinitely.
Finally, the closure plan obscures this country's basic constitutional and human rights commitments. Our nation's constitutional plan — which incorporates centuries-old habeas corpus prohibitions on arbitrary detention, and over 200 of years of our constitutional tradition — rejects the notion of indefinite detention without charge, particularly detention so removed from the original basis for imprisonment. America's constitutional space should resemble the marvelous Spanish café envisioned in the Hemingway short story – as an antidote to chaos and despair, it should aspire to be a clean, well-lighted place.
Yet, a central feature of the Obama administration's closure plan is simply to move detainees who have not been cleared for release to the U.S. mainland and detain those it chooses not to charge with no end in sight. Giving Guantanamo and the grotesque feature with which it is associated – indefinite detention – a new zip code, is not a plan to close Guantanamo. It merely entrenches the indefinite detention domestically, further normalizing its dark feature in our nation's constitutional landscape, and risks expanding the practice under future presidents for terrorism suspects or other equally unpopular groups likewise deemed not fit to have rights. Importing and extending Guantanamo darkens America's constitutional order and, regrettably, President Obama's legacy.