[Pnews] Guantánamo’s Indelible Legacy - Or How This Became a Gitmo World

Prisoner News ppnews at freedomarchives.org
Mon Jan 20 17:16:47 EST 2020


    *Guantánamo’s Indelible Legacy *
    *Or How This Became a Gitmo World*

    By Karen J. Greenberg
    <http://www.tomdispatch.com/authors/karengreenberg> and Joshua L.
    Dratel - January 19, 2020

    In January 2002, the Guantánamo Bay Detention Facility in Cuba
    opened its gates for the first 20 detainees of the war on terror.
    Within 100 days
    300 <https://www.cnn.com/2002/US/08/05/gitmo.detainees/index.html>
    of them would arrive, often hooded and in those infamous orange
    and that would just be the beginning. At its height, the population
    would rise to nearly 800 prisoners from 59 countries
    Eighteen years later, it still holds 40 prisoners
    most of whom will undoubtedly remain there without charges or trial
    for the rest of their lives. (That’s likely true even of the five
    who have been cleared for release for more than a decade.) In 2013,
    journalist Carol Rosenberg astutely labeled them “forever prisoners
    And those detainees are hardly the only enduring legacy of
    Guantánamo Bay. Thanks to that prison camp, we as a country have
    come to understand aspects of both the law and policy in new ways
    that might prove to be “forever changes.”

    Here are eight ways in which the toxic policies of that offshore
    facility have contaminated American institutions, as well as our
    laws and customs, in the years since 2002.

    1./Indefinite detention/: The first item on any list of Guantánamo’s
    offspring would have to be the category “indefinite detention.” In
    the context of U.S. law, until that long-ago January, the very
    notion was both foreign and forbidden
    <https://www.aclu.org/other/indefinite-detention>. Detention without
    charge or trial was, in fact, precluded by the Fifth Amendment
    right to due process, a reality that had been honored since the
    founding of the republic. Though the detainees there were eventually
    granted access to lawyers and the right to have their cases reviewed
    <https://www.theguardian.com/world/2004/jun/28/guantanamo.usa>, for
    only a handful of them has that right of being charged or released
    been realized

    The indefinite detention that began at Guantánamo Bay has now
    spawned its mirror image in the camps for undocumented immigrants
    (and their children) along the U.S. Mexican border. Even the optics
    there are proving to be carbon copies of Guantánamo: the open-air
    wire cages
    the armed guards, and the physical abuse
    of migrants and asylum seekers, both adults and children. At
    Guantánamo Bay, the government didn’t distinguish
    between juveniles and adults until years after the facility had
    opened, another example of a policy Gitmo brought into existence
    that was previously inconceivable in the U.S. legal system. In some
    ways, in fact, the situation at the border may be even worse, as the
    detained there are kept in unsanitary conditions
    without sufficient access to doctors

    And here’s another way the border is one-upping Guantánamo. The
    government was required to give the International Committee of the
    Red Cross access to its wartime detention facilities, so the health
    and medical conditions at Gitmo were monitored and kept to a
    relatively decent standard once those initial three months of
    open-air cages
    <https://account.miamiherald.com/paywall/stop?resume=1939250> ended.
    In the border detention centers, however, tots have been left in
    soiled diapers
    housed along with their mothers and fathers in bitterly cold,
    jail-like conditions, and denied
    adequate medical attention, including vaccines

    2. /A new legal language for the purpose of bypassing the law/: From
    the very start, Guantánamo challenged the normal language of law and
    democracy. The detainees there could not be called “prisoners
    as they would then have been considered “prisoners of war” and so
    subject to the protections of the Geneva Conventions
    The cages and later prefab prison complexes (transported from
    could not be labeled “prisons” for the same reason. So the
    government invented a new term, “enemy combatant
    derived from “unlawful enemy belligerent,” that did have legal
    standing. The point, of course, was to create a whole new legal
    category that, like the offshore prison itself, would be immune to
    existing laws, American or international, pertaining to prisoners of

    This evasion of the law has not only persisted to this day, but has
    crept into other areas of Washington’s foreign policy. Recently, for
    instance, Trump administration lawyers invoked
    the term “enemy combatant” to justify the drone killing of Iranian
    Major General Qassem Suleimani in Iraq. Meanwhile, at the border,
    asylum seekers have been transformed into “illegal immigrants” and,
    on that basis, denied
    essential rights.

    3/. Legal cover/: While a new language was being institutionalized,
    the Department of Justice offered its own version of legal cover.
    Its Office of Legal Counsel (OLC) was enlisted to provide
    often-secret legal justifications for the policies underlying what
    was then being called the Global War on Terror. The OLC
    would, in fact, devise farfetched rationales for many previously
    outlawed policies of that war, most notoriously the CIA’s torture
    and interrogation programs
    whose “enhanced interrogation techniques” were used at the Agency’s
    “black sites
    <https://www.newyorker.com/magazine/2007/08/13/the-black-sites>” (or
    secret prisons) around the world upon a number of high-profile
    detainees later sent to Guantánamo.

    Before 9/11, few outsiders even knew of the existence of the Office
    of Legal Counsel. In the years since, however, it’s become the White
    House’s go-to department for contorted, often secret legal
    “opinions” meant to justify previously questionable or unauthorized
    executive actions. Notoriously, OLC memos justified “targeted
    killings” by drone of key figures in terror groups, including an
    American citizen
    Recently, for instance, that office has been used to explain away a
    number of things, including why a sitting president cannot be
    (see: former special counsel Robert Mueller) or the granting of
    absolute immunity
    to White House officials so they can defy subpoenas to testify
    before Congress (see: House impeachment hearings). And as any OLC
    memos can be kept secret, who’s to know, for instance, whether or
    not similar legal memos were written to cover acts like the recent
    killing of Major General Suleimani

    4. /The sidelining and removal of professionals/: From its
    inception, Guantánamo’s supervisors shoved aside any professionals
    or government officials who stood in their way. Notably,
    then-Secretary of Defense Donald Rumsfeld appointed individuals to
    run Guantánamo who would report directly
    to him rather than go through any pre-existing chain of command. In
    that way, he effectively removed those who would contradict his
    orders or the policies put in place under his command, including,
    for instance, that prisoners on hunger strikes should be force-fed

    In the Trump era, this dislike of professionals has spread through
    many agencies and departments of the government. The twist now is
    that those professionals are often leaving by choice. The State
    Department, for instance, has dwindled
    steadily in size since Donald Trump took office, as those
    disagreeing with administration policies have simply quit or retired
    in significant numbers. Similarly, at the Pentagon, in a steady
    officials have resigned or been fired due to policy disagreements.

    5. /The use of the military for detention operations/: In the fall
    of 2002, General Tommy Franks, the head
    <https://www.britannica.com/biography/Tommy-Franks> of U.S. Central
    Command, complained
    to Rumsfeld that his troops were being wasted on detainee
    operations. Hundreds of prisoners had been captured in the invasion
    of Afghanistan that began in October 2001
    and Army personnel were being asked to serve as guards
    in the detention centers set up at the new American military bases
    in that country. Though many of those detainees would subsequently
    be transferred to Guantánamo, the military was not off the hook. A
    joint task force
    of all four of its branches would be deployed to Guantánamo to serve
    as guards for the arriving detainees. Some of them insisted that it
    was not a task they were prepared for, that their previous service
    as guards at military brigs for service personnel who had broken the
    law was hardly proper preparation for guarding prisoners from the
    battlefield. But to no avail.

    Today, that military has been deployed in a similar fashion to the
    southern border in support of detention operations there, a steady
    presence of more than 5,000 troops
    since the early days of the Trump presidency, including active-duty
    military personnel and the National Guard. Under U.S. law
    the military is not authorized to carry out domestic law
    enforcement. A letter from 30 members of Congress to Pentagon
    Principal Deputy Inspector General Glenn Fine made the point
    "The military should have no role in enforcing domestic law, which
    is why Trump’s troop deployment to the southern border risks eroding
    the laws and norms that have kept the military and domestic law
    enforcement separate." Fine is now conducting a review
    of that deployment, but who knows when (or even if) it will see the
    light of day.

    6. /Secrecy and the withholding of information:/ When it came to
    Guantánamo, Pentagon officials discussing the number of detainees
    there would usually offer only approximations, rather than specific
    just as they would generally not mention the names of the prisoners.
    Journalists were normally kept from the facility
    and photographs forbidden. Meanwhile, a blanket of secrecy shrouded
    the prior treatment of those detainees, many of whom had been
    subjected to abuse and torture
    at the black sites where they were held before being transported to

    Today, on the border, the policy towards journalists, infamously
    dubbed “the enemies of the people” by this president, has been
    distinctly Gitmo-ish. Information has been withheld and efforts have
    been made to keep both journalists and photographers from border
    detention camps. Journalistic Freedom of Information Act requests
    have often been the singular means by which the public has gotten
    some insight into government border policies. Even members of
    Congress have been denied access to the detention facilities, while
    the U.S. Customs and Border Protection Agency has failed to keep
    records that would enable migrant families to reunite or let any
    oversight agency accurately determine the number of detainees,
    particularly children, being held.

    In the theater of war, similar secrecy persists. Just this month,
    for example, the administration refused
    to present Congress (no less the public) with evidence of its
    assertion that the Iranian major general it assassinated by drone
    posed an imminent threat to the United States and its interests.

    7. /Disregard for international law and treaties/: In characterizing
    the Geneva Convention as “quaint
    and “obsolete” as part of its justification for the detention and
    treatment of prisoners in the war on terror, President George W.
    Bush’s administration began to steadily eat away at Washington’s
    adherence to international treaties and conventions to which it had
    previously been both a signatory and a principal moral force. What
    followed, for instance, was a contravention
    of the Convention Against Torture, both in the CIA’s global torture
    program and in Washington’s toleration of the mistreatment of
    detainees it rendered
    to other countries.

    The lack of respect for treaty obligations and for the sanctity of
    international cooperation in matters affecting world peace, health,
    and harmony has only spread in these years with Trump administration
    decisions to withdraw from agreements and treaties of various sorts.
    These included: the Paris climate accord
    the nuclear agreement
    with Iran, and Cold War-era nuclear arms treaties with Russia (the
    Intermediate Nuclear Forces agreement last year and, more recently,
    the ignoring of warnings
    from the Russians that there will not be sufficient time to
    negotiate the renewal of the essential New Start nuclear arms
    limitation agreement that will lapse in 2021). As a result, the
    world has become a more dangerous and unpredictable place.

    8. /Lack of accountability/: Although some of the newly legalized
    policies of the Bush era, including the use of torture, were ended
    by the Obama administration, there has been no appetite for holding
    government officials responsible for illegal and unconstitutional
    conduct. As President Obama so classically put it
    <https://www.nytimes.com/2009/01/12/us/politics/12inquire.html> when
    it came to taking action to hold individuals accountable for the
    CIA’s torture program, it was time “to look forward as opposed to
    looking backwards.”

    Today, Donald Trump and his team expect a similar kind of
    Gitmo-style impunity for themselves. As he’s said
    many times, “I can do whatever I want as president.” The withholding
    of military aid to Ukraine
    in an attempt to get information on rival Joe Biden (and his son) is
    but one example of the license he’s taken. A sense of immunity from
    the law is deeply entrenched in this administration (as the refusal
    of his key officials to testify before the House of Representatives
    has shown).

    It’s worth noting that the House impeachment
    <https://www.bbc.com/news/world-us-canada-39945744> of the president
    was a rare step forward when it comes to holding officials
    accountable for violations of the law in this era (though conviction
    in the Senate is essentially unimaginable). Whether such
    accountability will ever take hold in the context of global policy
    -- in the killing of Suleimani, in the separation of children from
    their families at the border, or in the context of election
    interference -- remains to be seen. At the moment, it seems unlikely
    indeed. After all, we still live in the Guantánamo era.

    The toll of the war on terror in terms of lives and treasure has
    been well documented. It has cost American taxpayers at least $6.4
    trillion <https://watson.brown.edu/costsofwar/> (and probably far
    more than that), while resulting in the deaths of up to 500,000
    nearly half of whom are estimated to have been civilians (a number
    that doesn’t include indirect deaths from disease, starvation and
    other war-related causes). Meanwhile, a new Gitmo-ized narrative for
    the law and national security policy has come into being.

    The irony is unmistakable. The Guantánamo Bay detention facility was
    purposely established outside the U.S. so that it would not be
    subject to the country’s normal laws and policies. As many warned at
    the time, the notion that it would remain separate and anomalous was
    sure to be illusory. And indeed that has proved to be so.

    Instead of remaining an offshore anomaly, Guantánamo has moved
    incrementally onshore and that is undeniably its indelible legacy.

    /Karen J. Greenberg, a /TomDispatch /regular/
    is the director of the //Center on National Security at Fordham
    Law//, as well as the editor-in-chief of the CNS Soufan Group
    //Morning Brief//. She is the author and editor of many books,
    including /Rogue Justice: The Making of the Security State
    /The Least Worst Place: Guantánamo’s First 100 Days

    /Joshua L. Dratel, a New York-based lawyer, litigates key national
    security cases involving terrorism, surveillance, and
    whistleblowers. He is a contributor to Greenberg’s newest volume,
    /Reimagining the National Security State: Liberalism on the Brink

    /Julia Tedesco helped with research for this article./

    Copyright 2020 Karen J. Greenberg and Joshua L. Dratel

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