Last week, news broke that the Pentagon is considering several military and federal prisons to house some of the remaining 116 men held at Guantánamo Bay. The effort inaugurates a last-ditch bid to close the infamous facility, opened in 2002 at the inception of President George W. Bush's "Global War on Terror." The sites being toured by top military brass include a Navy brig in South Carolina and an Army Disciplinary Barracks in Kansas.
On Thursday, Defense Secretary Ash Carter went on a media blitz to persuade the public that establishing "Guantánamo North" makes both fiscal and security sense. "As long as this detention facility remains open, it will remain a rallying cry for jihadi propaganda," Carter explained, adding that US taxpayers are currently "paying too high a price" for Guantánamo.
The Obama administration, it seems, is stricken with the same peculiar penchant as its predecessor for self-servingly redefining commonly understood terms. Over a decade ago, the Bush Administration construed "torture" so narrowly as to allow waterboarding, anal rape (labelled "rectal feeding" in the purest Orwellian style), and other monstrosities it committed against supposed terrorists. Today, when the Obama administration talks of "closing" Guantánamo, what they actually mean is that they want to relocate the facility—along with everything that it represents—to the continental United States. This includes the practice of indefinite imprisonment without charge or fair process.
Since 2005, with my students in various law school clinics, I have represented 14 Guantánamo prisoners in federal court, all the way up to the US Supreme Court, as well as at trial before the Military Commission and before the Periodic Review Board at Guantánamo. In that decade, I have made 37 trips to that isolated corner of Cuba to visit the Guantánamo prison camps for countless hours of meetings with those men.
When lawyers like me, human rights groups and international organizations, friendly governments, and concerned citizens the world over call for Guantánamo to be closed, we are not asking for it to be imported to the continental US. Our objection to Guantánamo is not geographic in nature, and critics will not be satisfied if the same misconduct is merely transplanted elsewhere.
Guantánamo was never a single prison facility. From the beginning, it was always an idea, an ideology that purportedly liberated the US government from the fetters of domestic and international law. It also formed part of a larger, global network of shady and lawless prisons set up by the United States after the 9/11 attacks. Some of the men I've represented at Guantánamo and beyond previously survived torture at CIA black sites like the Salt Pit in Afghanistan and others. Their names are listed in the Senate's damning study of the CIA Rendition, Detention, and Interrogation program, which was finally declassified and made public late last year. They have been held and tortured at proxy sites run by foreign governments, and they have been imprisoned at other US military prisons at Bagram and Kandahar, in Afghanistan.
When people call for Guantánamo to be closed, it is simply shorthand for a more comprehensive demand to end torture and arbitrary, indefinite imprisonment without trial or fair process. Obama administration officials who pretend that moving the prisoners to the United States for continued, open-ended imprisonment actually answers the charge leveled at the US government for maintaining the facility for 13 years and counting are either deluded or, worse, trying to fool whoever is listening.
My clients at Guantánamo certainly do not deem that sort of "closure" meaningful or more protective of their rights. Over the years, I've learned to defer to their analysis and instincts—to regard the prisoners as the foremost experts on all matters Guantánamo-related. After all, they have the most skin in the game and therefore the greatest stake in tracking and dissecting legal and political developments, as well as their manifold ramifications.
If these men are moved to the United States, they know all too well that US courts taking up the somewhat novel legal issues relating to their continuing, indefinite military imprisonment might embrace and entrench, in the context of stateside detention, the problematic body of law that already arose out of the Guantánamo experiment.
In a politically charged, fear-driven environment where timorous courts nationwide haven't exactly distinguished themselves as bold stalwarts of justice, it would not be wise to bank on those same courts tacking liberal when they could instead adapt to domestic detention the far more rights-restrictive concepts developed by courts in the extraterritorial, Cuban context.
In fact, the bitter lesson of the prisoners' experience is that even when they win in court, they still lose. The Supreme Court has taken up their legal issues four separate times, ostensibly to rule in their favor and against the US government after many years of litigation. But even the most seemingly favorable doctrinal outcomes exact a heavy price in years and do not necessarily correlate with meaningful real-world results. Today, these cases stand mostly as lofty—and costly—abstractions, taunting the 116 men still at Guantánamo.
Even assuming for the sake of argument that US courts eventually hold that Guantánamo prisoners enjoy greater rights by virtue of their presence on American soil, it would take even more years of litigation to reach that point, while prisoners languish in stateside facilities where conditions may be even worse than they are today at Guantánamo.
For the prisoners I represent, this is no academic dispute—it is quite literally a matter of life and death. Let's not kid ourselves about whose agenda would be served by bringing these long-suffering men to the United States. That move would enable the Obama administration to proclaim its promise to close Guantánamo fulfilled, declare victory, and blithely move on. The law and policy of indefinite military imprisonment would stand, largely intact and further normalized by expansion on the home-front. And, importantly, the prisoners will be promptly forgotten as the legal issues take years more to snake their way through the federal judiciary once again.
So what's the alternative? A fair and responsible approach would be to repatriate or resettle as many as possible of the 116 prisoners directly from Cuba. Any remaining prisoners should be given fair trials in a civilian US court, as opposed to an irregular and dysfunctional military commission (emphasis on fair here).
Then again, that would amount to actually closing Guantánamo.
Ramzi Kassem is a professor at the City University of New York School of Law. He directs the CLEAR project (Creating Law Enforcement Accountability & Responsibility) as well as the Immigrant & Non-Citizen Rights Clinic.