9/11 at 10: Guantánamo, the Forever Prison?

Despite the promises of both candidates in the last presidential election—John McCain as well as Barack Obama—to close Guantánamo, it is not closed. President Obama signed an executive order on his second day in office mandating that the prison be shut within a year, but today, more than two and a half years later, it is no exaggeration to say that all progress towards closing the place has come to a halt. There has not been a single release in the last eight months—by far the longest such stretch of time in the nearly ten-year history of the prison—despite the fact that 89 of the 171 remaining men have been cleared for release.

How did we come to this state of affairs? When President Obama signed his executive order in January 2009, the Center for Constitutional Rights was one of the only groups to express concern that a year was too long. We argued that the government should have picked out the few dozen men who should be charged criminally within weeks, using principles prosecutors are accustomed to applying, and that the rest of the men should be released. Instead, by May 2009, the president announced in a speech that he would keep every option used by the last administration open, including trials by military commission and detaining some of the men for an unlimited time without charge or trial.

The president’s executive order created an interagency task force to sort through the individual cases. The task force eventually cleared most of the men for release. But getting the task force up and running ate up months—the predictable cost of delegating decision-making responsibility to a nonpartisan committee of bureaucrats. During that period, the Defense Department began leaking to the media claims (almost never backed by names or facts) that significant numbers of detainees released under the prior administration had engaged in terrorism after their release. Scenting blood in the water, the president’s opponents in Congress imposed restrictions on transfers out of Guantánamo; in the absence of any visible pushback from the president, his allies in Congress acquiesced. As lawyers in the habeas cases, we now have both political branches of government, Congress and the executive, firmly aligned against us.

Usually the constitutional role of the courts is to break such impasses and defend the individual rights at stake. But the nomination of an Obama administration insider, Elena Kagan, to the Supreme Court effectively ended its role in that fight. She has recused herself in the vast majority of detainee policy cases, and will likely continue to do so for the indefinite future. Given the composition of the Court, with her possible fifth vote no longer in play, the last word in these cases belongs for now to the Court of Appeals for the D.C. Circuit — the same court that was overruled three times when the Supreme Court decided in favor of detainees in 2004, 2006, and 2008.

After the 2008 Supreme Court victory, the next case to go to the D.C. Court of Appeals involved a group of men everyone agreed were wrongly held but needed asylum because they faced persecution and even torture and execution if they returned to their home country of China. The Court of Appeals decided that they could not be released into the United States even though no other country would take them. The D.C. District Court judges, who are bound to follow D.C. Circuit Court rulings, have interpreted the decision to deny them the power to order release, period — anywhere. As a result, these lower court judges are not allowing the cases of men who have been cleared for release to go forward — after all, once the government says it wants to try to release them, what more can the courts do but cheer them on if they cannot order release? As counsel for the detainees, we are left with no way to force the executive branch’s hand.

Meanwhile, the Court of Appeals has reversed nearly every contested case that the government lost below and chose to appeal. The standards set in those adverse appellate decisions make it now next to impossible to win a case through appeal — a fact confirmed by a concurring opinion from one judge on the Court of Appeals stating baldly that he doubted any of his colleagues will rule in favor of a detainee if the government could “muster even ‘some evidence’” (no matter how dubious the source) against the detainee.

Given the Supreme Court’s current silence, we advocates for the men at Guantánamo can do little but tell their stories, which we have certainly done to good effect at points over the past decade when litigation seemed equally hopeless.

Perhaps the only ground for optimism is, perversely, what motivated President Bush and candidates McCain and Obama to call for closure of the prison back in 2008—not humane concerns for men wrongly held now for nearly ten years, but rather the impact the whole system of U.S.-sponsored “war on terror” detention (of which Guantánamo is merely the prime symbol) has on the international perception of the United States. The most significant political upheaval in the Muslim world—the great awakening of the Arab Spring—moves forward today without any perceptible influence from an administration desperate for credibility with the democratic movements on the ground. Perhaps that will make the fates of 171 men matter to a superpower with no other reason to care.