Public Interest

Guantanamo Bay Is Still A Thing

Years after the fact, the Obama administration may be making good on its Gitmo campaign promise.

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Remember fourteen years ago when, in the wake of a national tragedy, the administration of President George W. Bush decided to allow the indefinite detention of people deemed by the administration to maybe be terrorists, without either adhering to the minimum standards called for by the laws of war or allowing these people access to the United States courts?  

I do. I found the prospect of such unchecked executive power appalling, the stuff of a dystopic nightmare. And its most potent symbol was the detention camp at Guantanamo Bay, Cuba, a facility frequently described as a “legal black hole.” So I cheered as the Supreme Court issued a series of decisions rebuking many of the administration’s arguments and brought some light back to Guantanamo. First came Hamdi v. Rumsfeld and Rasul v. Bush, then Hamdan v. Rumsfeld, and finally Boumediene v. Bush, which affirmed the right of detainees to access the federal court system by filing a writ of habeas corpus challenging their detention.

The Court handed down Boumediene in June 2008, during the waning days of the Bush administration, as the candidates sparring to replace him debated what to do about Guantanamo. Given all this interest in the subject, it was not a great surprise when, on January 22, 2009, one of the first acts of newly-sworn President Barack Obama was to issue an executive order regarding “Closure of Guantanamo Detention Facilities.” The order didn’t mince words: “The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.”

There was a flurry of conversation about how Guantanamo’s closure might be effected, political wrangling followed, a year went by, and then… nothing much happened. People remained imprisoned at Guantanamo, including people who had been cleared of any wrongdoing. Talk of Guantanamo died down.

And it mostly stayed dead. Five-plus years later, still nothing much has happened with Guantanamo. Until now, maybe?

As we approach the waning days of the Obama administration, Secretary of Defense Ash Carter has reopened the issue of closing Guantanamo. At a press briefing last month, he said this:

As long as this detention facility remains open, it will remain a rallying cry for jihadi propaganda. The taxpayers are paying too high a financial price to keep this facility open. And additionally, closing the detention facility at Guantanamo is not something, in my judgment, that we should leave to the next president, whether Republican or Democrat.

It’s for all of these reasons that I’ve strongly supported President Obama’s commitment to bringing a responsible end to holding detainees at Guantanamo.

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The administration says that bringing a responsible end to holding detainees at Guantanamo will involve two things: transferring eligible detainees to other nations, and finding somewhere else to continue holding the remaining prisoners who are actually dangerous. All that remains is to work out the details. And a New York Times editorial published a few days ago says that “The White House and the Pentagon will soon present to Congress a detailed plan for closing the prison.”  

The editorial also says some other things about Guantanamo — that the facility “fester[s] on the edge of the Caribbean and the Constitution” and that it “has had a powerful radicalizing effect, has severely tarnished America’s standing as a nation of laws and has cost taxpayers more than $5.2 billion,” among other things.

With all this talk of closing Guantanamo, it could be easy to lose sight of the detainees themselves. But that’s where the public interest lawyers come in. As the Obama administration prepares to release its plan for closing Guantanamo, lawyers at the Center for Constitutional Rights have continued beating the drum on behalf of the detainees themselves, winning transfer approvals, filing habeas petitions, and fighting for civil damages on behalf of former detainees who say they were subject to torture and other abuse while they were detained.

So what are the takeaways of all this? Fourteen years after the Bush administration made terrible decisions on how to deal with people detained as part of the so-called “war on terror” — decisions that seemed bad then and have only proved worse over time — Guantanamo Bay is still a thing. Public interest lawyers won early victories against its most Kafkaesque qualities — Hamdi was won by federal defender Frank Dunham, Jr., Hamdan by then-law professor and later-Acting Solicitor General Neal Katyal, and Boumediene by former Solicitor General Seth Waxman — and other public interest lawyers like those at the Center for Constitutional Rights have kept on fighting. Now the administration may be on the verge of actually shutting Guantanamo down and getting us out of the quagmire. Let’s hope it finally happens.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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