After 17 years, Guantanamo still erodes U.S. commitment to the rule of law

After 17 years, Guantanamo still erodes U.S. commitment to the rule of law

Published By Washington Post

Peter Jan Honigsberg is professor of law at the University of San Francisco and founder and director of Witness to Guantanamo.

Jan. 11 marks the 17th anniversary of the opening of the U.S. detention center in Guantanamo Bay, Cuba. Seven hundred-and-eighty Muslim men and boys were held in the prison, many for a decade or longer, and nearly all without charges. Forty men still languish in Guantanamo. President Trump has stated that he has no interest in shuttering it. Instead, he has suggested that he would like to “load it up with some bad dudes.”

The Guantanamo detention center has not been on most people’s minds in the almost two decades since it opened. In fact, after President Barack Obama said on this second day in office that he would close the prison within one year, many people thought he did. He never fulfilled his promise.

People today may believe that the men held in Guantanamo are “guilty” dangerous terrorists. But the majority of those still detained have never been charged and convicted of a crime.

America’s foundational belief in due process and the rule of law did not protect these men from being held in Guantanamo without charges. Nor did it protect them from torture. The rule of law also did not matter when the U.S. military purchased some of the men held in Guantanamo by paying bounties to Afghan and Pakistani soldiers.

Of the 40 men remaining in the prison, six “high value prisoners” are to be tried in military commissions. Preliminary proceedings have been ongoing for more than 10 years. There is no indication these six suspects will ever have a trial. If they die before their trials are concluded and verdicts are given, we will never have the rule-of-law assurances that the men were guilty of their alleged crimes.

Violations of the rule of law in Guantanamo have extended beyond subjecting the men to torture and holding most of them for years without charges. Defense lawyers found microphones in client meeting rooms in the prison.Lawyers also discovered that officials had read the prisoners’ legal mail.

Twenty-six of the 40 men remaining in the prison are considered “forever prisoners.” They cannot be tried because the evidence against them is either insufficient or unreliable — since it was obtained through torture. Yet, these men are also considered too dangerous to be released. They are likely to die in Guantanamo, never charged, never tried and never convicted.

The Periodic Review Board — the panel that reviews the status of the men in Guantanamo — has not recommended release of any prisoner since Trump took office. Five of the men currently held in the prison were cleared for release during Obama’s tenure. But Trump shows no interest in releasing them now.

The rule of law continues to be broken today in Guantanamo and in the culture of the current administration. The Muslim travel ban, blocking families from lawfully applying for asylum, separating children from parents at the border, directing illegal campaign payments, unilaterally withdrawing from treaties, ridiculing federal judges and pursuing policies that benefit the president’s business dealings — these all reflect a president who is not committed to guaranteeing that our laws are faithfully executed, as he solemnly swore under oath.

With the Democrats in control of the House, there is hope we may return to civility and the rule of law. But we cannot fully return unless we move soon to recognize the damage to America’s principles and values caused by our actions in Guantanamo.

Guantanamo may someday fade from our lives and our memories. But today we must publicly acknowledge that keeping Guantanamo active is wrong and unlawful and in clear violation of a presidential administration’s duty to execute laws and uphold the Constitution.