President Bush made it official and final last week: Guantanamo Bay will not be closed on his watch. It is fitting that he is not the one to bring an end to that detention facility in spite of his announcement in the spring of 2006 that he wanted to shut it down. The president’s decision acknowledges what has been his true policy since the day it opened nearly seven years ago—leave the detainees to languish in an unending stalemate.
The controversy over six Chinese Muslims from Xinjiang Uighur Autonomous Region held at Guantanamo is the latest case proving the point. The District Court held on October 7th that the facts presented against those detainees precluded further detention and ordered their immediate release, albeit with some supervision. But within 24 hours, the Department of Defense successfully filed for a stay on the grounds that the Uighurs posed too much of a danger to be set free, even though they had long ago been declared “No Longer Enemy Combatants” by the legal authorities at Guantanamo. Further arguments will be held on November 24th.
Bush created his own stalemate and now has to live with it until the end.
The stalemate rests on two principles. The first is that the federal courts should have no say in the fate of those held at Gitmo. That was established by the Military Order of November 13, 2001, giving the Pentagon unprecedented legal authority over the detainees.
Advocates for the detainees felt hope and a sense of victory in June 2004 when a Supreme Court decision, in the Rasul case, acknowledged the federal courts’ jurisdiction to hear habeas claims from Guantanamo. Then they were devastated six months later by a court joining the government’s position, when the DC District Court ruled that the detainees have no constitutional rights, thus making habeas irrelevant.
Since then, the Supreme Court has tried repeatedly to enable detainees to seek habeas in the federal courts, most recently with the Boumediene decision in June, which said that the detainees do have some constitutional rights. This summer, the CIA joined the Pentagon in an effort to delay progress on the habeas petitions by asking for an extension of their time for filing response briefs.
The second principle is to ignore the potential role of diplomacy and international cooperation in resolving detainee cases. Once again, the case of the Uighurs illustrates the problem. The DOD’s insistence, for its own legal reasons, that the Uighurs are dangerous undermines the Department of State’s efforts to negotiate a third-country placement for them.
In essence, Bush created his own stalemate and now has to live with it until the end. The administration cannot try the detainees under their own rules, as the process itself continues to falter, illustrated best by the recent resignations of four government prosecutors who insist that the detainees have been treated abusively and that evidence has been compromised. The pictures of orange-suited detainees, living in limbo for seven plus years, many of them without any proof of guilt, many sleep deprived, held in isolation, and generally damaged and desperate to the point of participating in hunger strikes and otherwise trying to take their own lives—all only reinforce the image of abuse that has come to define the Bush administration. And that should come to an end with this administration’s departure.
In one fell swoop the new president can make a gesture that addresses the moral, political, legal and diplomatic dimensions of the Guantanamo quagmire. He can do so by announcing that detention facility will be closed as soon as possible. It took ninety-six hours working around the clock to build the first parts of Camp X-Ray. It should be dismantled with a similar sense of urgency.
To end the stalemate, the new president should authorize the use of recognized legal proceedings to try the four dozen or so detainees that are likely to be charged with crimes, and pursue aggressive and flexible diplomacy to expatriate the remaining 190 or so detainees.
The next president should begin this effort on Day One. By doing so he can make sure that Guantanamo, now and forever, will remain synonymous with the presidency of George W. Bush and no other.