Legal black holes

Hood Recent reports say the detention center at Guantanamo Bay will remain open for several more months, maybe into 2011. Despite the delay, President Barack Obama likely intends to close the prison. His administration is hyper aware of its own perception and does not want to maintain a facility that so vividly represents Washington’s abuse of justice.

I identify ‘image’ as Obama’s primary motive because the closure of Guantanamo is essentially a cosmetic change that leaves underlying policies in tact. The issue isn’t whether Guantanamo is open or closed; it’s whether prisoners are treated fairly or unfairly.

Obama has been clear. In February, he defended Washington’s right to deny the 600 prisoners at Bagram Air Base the means to challenge their imprisonment (known as a writ of habeas corpus) – the same position as the Bush II administration. Their argument is that Bagram is outside the jurisdiction of domestic courts and therefore detainees should be handled through military tribunals.

In April, a district court judge ruled (PDF) that three Bagram detainees captured outside of Afghanistan had the legal right to challenge their detention. He disagreed with Obama’s argument, saying that “a detention authority that sweeps so broadly is simply beyond what the law of war will support,” and citing the concern that “the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

Obama reacted by appealing.

The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight. (NY Times)

Incidentally, this directly contradicts Obama’s statement during the campaign, in which he rejected “the false choice between fighting terrorism and respecting habeas corpus.”

Obama spoke about this “false choice” in response to the landmark Boumediene v. Bush Supreme Court case, which determined that detainees at Guantanamo Bay have the constitutional right to challenge their imprisonment in U.S. courts and that military tribunals were insufficient to guarantee due process. Obama hailed the decision, saying that it was a “rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo.”

But if prisoners are held at Bagram without access to courts, if their mistreatment is routine – sometimes to the point of death, then how could we consider the detention center anything but a black hole? While Washington has disavowed Guantanamo, it has “more than $200 million in projects in the works” at Bagram, including plans to add space for a ballooning prison population.

So Obama probably will close Guantanamo, but it makes little difference if he still reserves the power to send prisoners to Bagram, where they will be subjected to the same fiasco of justice.


Flickr photo by takomabibelot