Today an important deadline was missed. One of the most shameful chapters of American history was to have been brought to a close with the shuttering of the prison at Guantánamo Bay. President Obama's executive order to close the prison within a year (PDF), made on his second full day in office, was a bold act that signaled a strong commitment to breaking away from the unlawful policies of the Bush administration.
Sadly, the prison is still open. President Obama has recently reaffirmed his commitment to closing the facility, and that is encouraging. Yet, at the same time, it is worrisome that when Guantánamo finally does close, it appears that some of its most shameful policies will continue on U.S. soil, potentially reducing the closure to a symbolic gesture.
The administration has admittedly run into significant obstacles to closing the prison. Congress, awash in fear-mongering and claims of "Not in my backyard," helped turn Guantánamo into a political football by blocking transfers of detainees cleared for release to the U.S. and launching a failed attempt to block the Justice Department from prosecuting detainees in federal court. But the administration is also to blame, as it has essentially discouraged other countries from accepting detainees by refusing to accept any into the U.S., fought the release of cleared detainees even up to the Supreme Court, and declared recently that it won't release detainees to Yemen. The notion that Americans are made safer by continuing to detain prisoners who have been deemed appropriate for release simply because they come from certain countries will only serve to inflame those who believe that the U.S. has lost respect for the rule of law.
It is vital that the failure to meet the closure deadline does not give in to a sense of inertia or inevitability that the prison will be open for a long time to come. But it is also just as important that when Guantánamo is finally closed, it is closed right. That means that along with closing the facility, we must also put an end to its illegal policies like indefinite detention. Unfortunately, the latest indications from Washington don't bode well.
Last month, the Obama administration announced its intention to purchase the Thomson Correctional Center in Illinois for the purpose of holding some of the detainees currently remaining at Guantánamo. However, all indications are that some of the detainees who would be sent to the Thomson prison would be held under a policy, unchanged from the Bush administration, of indefinite detention without charge or trial. The Obama administration may have inherited the problems of Guantánamo from the Bush years, but by continuing the prison's lawless policies on U.S. soil, it would take undisputed ownership of them.
In deciding how to handle detainees, the administration should conduct a thorough review of each case. Detainees against whom there is no credible evidence should be repatriated back to their home countries or resettled elsewhere where they won't be tortured. Detainees against whom there is evidence of terrorist activity should be tried in federal courts. The American criminal justice system is more than capable of trying terrorism suspects while protecting both sensitive security evidence and fundamental rights. The federal courts have successfully prosecuted more than over 200 terrorism cases, including those of "Blind Sheik" Omar Abdel-Rahman for his role in the 1993 bombing of the World Trade Center, "shoe-bomber" Richard Reid and Zacarias Moussoui for conspiring in the 9/11 attacks.
No one disputes that the government has the right, under the laws of war, to detain prisoners captured on the battlefield until the end of hostilities. But the Bush and Obama administrations have defined their powers to do so far too broadly. They have used such authority to pick up and detain prisoners from around the globe who they deem engaged in the "war on terror," essentially defining the "war zone" as the entire globe. Moreover, the "war on terror" will never come to a public, decisive end, so the duration of the war is essentially forever, opening up the possibility that America would detain individuals for the rest of their lives without giving them their due process rights. But even for those detainees at Guantánamo for whom the laws of war would ordinarily apply, the unique situation demands that they be charged or released after so many years of imprisonment without the protections of domestic and international law.
Guantánamo must close, and when it finally does, celebration will be in order. But the illegal policies embodied by the prison must disappear along with it. This moment in time presents a crucial opportunity to turn the page on the tragic policies of the past and firmly reclaim our moral authority. Continuing the failed policies of Guantánamo, on U.S. soil or elsewhere, would be an error of historic proportions.