The shadow of Gitmo


Among the most ignoble legacies of the George W. Bush administration will be the detention center for suspected terrorists at Guantanamo Bay Naval Base in Cuba. Administration officials drunk on executive power, disdainful of due process and indifferent to international opinion established -- in a territory they wrongly thought was beyond the reach of law -- a prison camp whose inmates comprised both dangerous terrorists and bystanders caught up in the post-9/11 dragnet in Afghanistan and Pakistan.

Despite its insistence that the United States was at war, the administration refused to treat the inmates at Guantanamo as prisoners of war. Dismissing as “quaint” the Geneva Convention that has protected generations of American soldiers, the administration condoned abusive interrogation tactics that later migrated to Iraq; the result was the sickening abuse of prisoners at Abu Ghraib. Instead of consulting with Congress, President Bush unilaterally fashioned a bare-bones judicial system to try detainees for war crimes even as the administration argued that they were entitled to no due process at all -- even if they were American citizens. Three times the Supreme Court reproached the administration (and, in the third ruling, Congress as well) for denying detainees their legal rights.

Guantanamo has eroded America’s reputation, embarrassed its allies and embittered its enemies. Even now, it haunts the last days of the Bush administration:


* Last week, a federal judge ordered the release of 17 Chinese Muslims held at Guantanamo who were cleared four years ago of being enemy combatants. At the request of the administration, which has been trying to persuade a country other than China to accept the inmates, an appeals court immediately issued an emergency stay of the judge’s order.

* Last month, the Washington Post reported that the Defense Department had reassigned an Air Force general who had overseen war-crimes proceedings at Guantanamo after judges in three cases excluded him from participation because he had improperly pressed them to move to trial before they were ready.

* In August, a military jury acquitted Salim Ahmed Hamdan, Osama bin Laden’s former driver, of conspiracy to engage in terrorism, while convicting him of the lesser charge of providing “material support” to Al Qaeda. Hamdan was then sentenced to 5 1/2 years in prison, which, counting time served, would allow him to be released in January. The Pentagon is seeking a new sentencing hearing.

Regardless of who is elected president on Nov. 4, the detention center at Guantanamo will be closed. At least that’s what Barack Obama and John McCain have promised. But while shutting down what was long a legal black hole will do away with a symbol of overreaching and injustice in the so-called war on terror, this country will continue to face the challenge of how to hold accountable men accused, in some cases appropriately, of engaging in terrorism directed at the United States. Even when the last Guantanamo inmate is convicted, released or repatriated, the question of how to deal with accused terrorists will remain -- and will move to the top of the national agenda if there is another 9/11.

Both presidential candidates should anticipate that day and tell voters precisely what they would do after Guantanamo is closed. They have offered clues: Both have made encouraging noises about the need to forswear torture of suspected terrorists, though McCain blurred his principled position by voting against legislation to require the CIA to follow the same interrogation guidelines used by the U.S. military. McCain supported, and Obama opposed, the 2006 Military Commissions Act that denied inmates at Guantanamo the right to challenge their confinement in a U.S. court by seeking a writ of habeas corpus. Fortunately, the Supreme Court ruled this year that the prisoners could bring habeas actions.

Neither nominee, however, has made Guantanamo or the question of due process for detainees a centerpiece of his campaign. Nor has either offered a comprehensive plan for rectifying the flaws that remain in the legal process, despite successive victories for detainees in the Supreme Court. Not that they have been pressed by voters or interest groups to say how they conceive of a post-Guantanamo world.

That may reflect the view that the abuses at Guantanamo are the result solely of the Bush administration’s propensity for cutting legal corners in fighting terrorism. But even after Bush leaves, there likely will be more than 200 inmates at Guantanamo who -- even if they are relocated to the continental United States -- will continue to be denied the sort of due process on which this nation prides itself. Although the Supreme Court has ruled that detainees have the right to challenge their confinement in court, it’s unclear what standards should guide judges in such cases. Meanwhile, the Pentagon has reserved the right to detain some inmates even if they are acquitted by military commissions.

McCain has supported the present military commission system. Obama has called it inadequate. At a minimum, the next president should work with Congress to revise the system in a way that provides defendants with protections identical to those afforded defendants in criminal trials. A more satisfying improvement -- one this page has supported -- would be an end to the military commission system altogether, meaning that even high-profile defendants would be tried in federal court. It is often forgotten that two notorious terrorists -- Omar Abdel Rahman, the “blind sheik” accused of plotting to bomb the United Nations, and Al Qaeda conspirator Zacarias Moussaoui -- were tried and convicted in federal criminal trials.

Whatever new system of justice is established, everyone remaining at Guantanamo should be either released or put on trial with the assurance that an acquittal will not be followed by a return to confinement. Moving beyond Guantanamo will require more than shuttering the notorious detention center. It will demand reclaiming precious American principles.