After 15 years, the extra-legal contrivance of Guantánamo Bay blights America’s standing in the world and continues to shock what conscience may remain in the country. Worse, it continues to erode the very legitimacy of the American government.
That is no exaggeration. After all, there seems to be only one reason for the existence of the prison in Cuba: the American leadership’s lack of faith in American ideals, the American system and the American people. The existence of the prison is tangible, unassailable proof of that failure of faith. When terrorists struck the World Trade Center and the Pentagon on Sept. 11, 2001, George W. Bush panicked, called it war, and commenced the exercise of all kinds of wartime presidential powers. He used them, among other purposes, for the invasion of American privacy, the perversion of the legal foundation of the National Security Agency, the commencement of drone warfare in states never hostile to our own, and the establishment of an offshore prison where torture was used and people could be held indefinitely without charges or legal defense.
All of this he did for transparently political reasons. He then passed on the mechanisms, along with its legal fig leaves, to Barack Obama. And while Obama did dramatically reduce the number of detainees, his campaign promise to close the prison will always remain unfulfilled. His political failure was greater than Bush’s simply because he is a Democrat, and Democrats are supposedly “soft” on everybody.
Throughout the process, officials have denied the practice of torture, but all the “detainees” who have eventually been allowed to speak have described interrogation procedures that were rather more than unpleasant. “Detainees,” by the way, is a euphemism. These people are prisoners, and they have been held without charges and without all the rights we normally afford the accused — the right, for example, to face their accusers in court. At a glacial pace, over the years since this abomination was established, the Supreme Court of the United States has held that many of the rights, including most significantly the right to writs of habeas corpus, applies to Guantánamo detainees. The Court, though, has never acknowledged the standing of those challenging the constitutionality of the underlying “war,” even though no war against terror has ever been declared by Congress. Perhaps this may be because a war against terror is a legal and linguistic absurdity.
Some people endorse all of this, and many more — particularly outside this country — abhor it, but no one is fooled by what has happened. The prison is in Cuba, and so successive administrations, going back at least to that of Bill Clinton (when Caribbean refugees were held there), maintain that it is in foreign territory. Therefore, such propositions went, no US laws or protections applied. Yet it is completely under American control, making it practically, if not yet legally, indistinguishable from American soil, and the prisoners are there for no reason except to deprive them of their legal rights. This fact is, in considerable part, the basis of Supreme Court decisions extending certain rights to the prisoners.
So why not close Gitmo now?
The question is rhetorical. President Trump’s chief of staff, Gen. John Kelly, is proud of Guantánamo, which was under his command from 2012 to 2016. Trump himself endorses the kind of thing that goes on at Guantánamo: “torture works,” he says, and perhaps believes.
In reality, it is quite well regarded that torture seldom works, and that in this ersatz “war on terror,” it has actually been less than helpful. Its use has, however, left American spokesmen without credibility when they attack, for example, the Islamic State for the same kind of brutality.
That leaves us with Democrats who don’t think they can close the prison at Guantánamo and with Republicans don’t want to. Thus it persists, a spreading stain on our national reputation. On one hand, it is internationally seen as a symbol of America’s helplessness; on the other, as a token of our brutality. It will go down in history as infamously as Franklin Roosevelt’s establishment of the internment camps for Japanese Americans, as an occurrence even worse than Abraham Lincoln’s suspension of habeas corpus during the Civil War.
Closing that wretched place is the cause of a remarkable few. Most of the rest of us are victims of the national attention span, which is that of a housefly. But so long as it remains in operation, it is there for the likes of Trump to use for “enemy combatants” — another ruse to circumvent the law and the Constitution.
This is not a naïve view of the nation and its relationship to its Constitution. Everybody — who has studied the matter, that is — has a right to his or her view of what our foundational document means. But it should be something of a guide, and when language has to be invented to set aside its provisions, and when fundamental rights are at stake, then that document has to mean something. It has to mean something when it is politically challenging to follow, or else it means nothing at all.