NEW YORK — President-elect Barack Obama’s promise to close the U.S. detention facility at Guantanamo Bay, Cuba, will go a long way toward ending one of the most shameful episodes in U.S. legal history.
An effective closure, however, calls for reflection on some lessons to be drawn from this sad chapter of our constitutional history and for action by new administration on those lessons.
In October 2006, President George W. Bush signed the Military Commissions Act, whose proclaimed objective was “to authorize trial by military commission for violations of the law of war, and for other purposes.”
Diverting the prosecution of terrorists to “ad hoc” martial courts was and remains a mistake, widely criticized by human rights activists and legal experts. The constitutionality of these military commissions remains unclear to this day, while bypassing the federal courts has not resulted in any security advantages against terrorism.
Lesson 1: The Military Commissions Act is far from indispensable and should have no place in the “War on Terror.”
In Brown v. Vasquez, the U.S. Supreme Court reaffirmed that “the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” a writ denied for too long to prisoners held at Guantanamo Bay. In June 2008, the Supreme Court ruled that even those prisoners unilaterally labeled as “enemy combatants” are entitled to challenge their detention through habeas corpus, but the decision has yet to have an impact on hundreds of Guantanamo detainees.
Lesson 2: The United States has every right to detain those who pose threats to its citizens and soldiers, but they must be allowed to challenge the legality of their detention before a federal court. Despite widespread pleas to close the Guantanamo facility, the Bush administration has refused to do so, thus prolonging what is widely perceived as a place where human rights are abused.
Lesson 3: Detainees posing a security threat may be incarcerated in maximum security prisons nationwide. The longer the Guantanamo Bay prison remains open, the more America’s reputation and democratic principles will suffer.
In November, in a military commission case against Afghan national Mohammed Jawad, army judge Col. Stephen Henley threw out a confession extracted under torture, affirming what legal experts have held for a long time: Coerced confessions are inherently unreliable and, even if reliable, taint the legality of the judicial process, which must be exemplary in every respect.
Lesson 4: The government has every right to search for valuable intelligence about the intentions and tactics of suspected terrorists, but torture should never be condoned as a valid method for extracting information, not even under the excuse of self-protection or for the sake of saving a greater number of lives.
Jumah Al Dossari, a Bahraini national and an “enemy combatant” held incommunicado at Guantanamo for an indefinite time, was found hanging by his neck in October 2005.
The rationale behind this “enemy combatant policy” is to incapacitate suspected terrorists by holding them indefinitely, incommunicado and without charges, for the duration of the “war on terror.” Yet bypassing the most basic guarantees against arbitrary detentions affects not only the suspects but everyone else — hurting “innocent bystanders caught in the crossfire” and ultimately undermining the morale of those who fight terrorism.
Lesson 5: Given the tremendous challenges posed by the terrorist threat, unilaterally labeling individuals as enemy combatants and detaining them indefinitely and incommunicado by executive order is not the proper way to go.
In the long run, this usurpation of power by the executive branch must be replaced by a legislative scheme of preventive detention subject to some meaningful judicial review.
After more than seven years of this enemy combatant policy, the legality of the interrogation techniques, detention policies and standards governing the trial of suspected terrorists remains largely unsettled. Detaining dangerous enemies is lawful and makes us safer, but at a high cost to our democratic principles and human dignity.
The lessons from Guantanamo point to the need for balancing executive discretion with a congressional scheme on preventive detention, coupled with access to legal counsel and meaningful judicial review by federal courts.
Cesar Chelala, M.D., is a cowinner of the Overseas Press Club of America award for an article on human rights. Alejandro M. Garro is professor of comparative law at Columbia University, New York.