An important new book about the post 9/11 state of secret, endlessly funded, results unmeasurable war on terror is considered in The current New York Review of Books. It is a definite must-read. Here's one section, succinctly explaining Gitmo:
At one point, Guantánamo held 780 prisoners, but the Bush administration eventually transferred more than five hundred to other countries, including their home countries. When Obama took office, 242 prisoners remained. Some were already cleared for release, or likely to be cleared. Others, like the September 11 suspects, were slated for criminal trials. That left a third group who were deemed too dangerous to release but could not be tried, either because they had committed no crime or because the evidence against them was too thin or too tainted by torture. All were labeled “law-of-war” detainees, on the theory that they are analogous to POWs: captured enemy fighters who can be held for the duration of hostilities. (They do not have formal POW status, which is reserved for regular members of military forces and militias associated with them.)
Releasing those cleared by review boards or courts would be an obvious victory for civil liberties and human rights, most strikingly in the case of the Uighur prisoners—Chinese Muslims who had never been anti-American but who could not be returned to China for fear of torture and other punishment. Early on, the Obama administration hoped to resettle some of the Uighurs in the US, but it retreated in the face of Republican outrage at the very thought of the government importing “terrorists” to US territory. Savage criticizes the administration’s spineless decision, which gave a signal to congressional Republicans that Obama “could be pushed around on Guantánamo issues.” (The Uighurs were eventually resettled elsewhere.)
In fact, though, there had been no intention of closing Guantánamo on grounds of civil liberties. All Obama proposed was moving the detainees from Guantánamo to the Thomson Correctional Center in Illinois. Literally, that would “close Guantánamo,” but with no effect on the liberties of its inmates other than moving them to the harsh conditions of a maximum security prison. Even that dubious plan was derailed by the wave of terrorism panic following the failed attack on an airplane by the passenger Abdulmutallab.
The plan also had nothing to do with defending the rule of law. On the contrary: it would violate the principle of “no punishment without a crime,” the most basic of all the principles of rule of law. The Thomson plan would have moved men never convicted of a crime from a prison camp to a punishment facility. Guantánamo is still a grim place, but over the years conditions for its inmates have improved greatly; it seems likely that Thomson would be worse. Sanctimoniously, Obama insisted that Guantánamo is “not who we are as a country.” But he never explained why locking the detainees away in prison cells qualifies as who we are as a country. Under the laws of war, among them the Geneva Convention, POWs are to be detained in nonpunitive conditions. If these men are truly “law-of-war detainees,” the same should be true for them.
Of course, the real motive for the proposed move was that the prison at Guantánamo is a serious embarrassment for US foreign policy, causing difficulties with our allies and used by enemies to recruit anti-American militants. Yet nobody has ever explained how moving the men from Guantánamo to Thomson would have solved this public relations problem. Did the administration think jihadi recruiters are too thick-headed to notice that the prisoners would still be prisoners? Social media would have quickly turned “Thomson” into a rallying cry just as potent as “Guantánamo.”
To be sure, Obama was assuming that by the time the Thomson prison was ready only a handful of detainees would be left; he had not counted on Congress clamping down on any effort to release Guantánamo prisoners. There have been other delays in the continued effort to transfer the prisoners—some caused by a defiantly insubordinate Pentagon,6 some by Justice Department litigators who continue to fight with undiminished zeal every case for habeas corpus of a detainee, and some by instability in Yemen, where it had been hoped some prisoners could be repatriated.
Recently, after a long hiatus, nine were released in January and eight more are slated for release; if that goes through, Obama will have transferred 145 Guantánamo inmates. At its present rate of clearance (fifteen clearances out of eighteen cases decided), the Guantánamo Periodic Review Board might be expected to clear thirty or more of the remaining detainees. That would leave the ten defendants to be tried by a military commission, seven “high value” detainees, and perhaps a dozen additional prisoners as the irreducible Guantánamo core.7 They will remain prisoners under the law of war in what still appears to be a forever war.
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