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Trapped in Guantanamo

Op-Ed

While once it was the conditions at the prison that were cause for concern, today it's the fact that scores of prisoners cleared for transfer remain in custody.

September 29, 2011|By Joseph Margulies

The prison at Guantanamo Bay, Cuba, is again in the news. The two Americans released this month by Iran have reported that when they complained about conditions in their Tehran prison, the jailers would "immediately remind us of comparable conditions at Guantanamo Bay." Such is the power of symbols.

Symbols are important, and we ignore them at our peril. But even in these hyperpartisan times, when symbols are baseball bats used by thugs in the public square to beat reason senseless, I like to pretend that the truth is worth pursuing. And one part of that truth is that conditions at Guantanamo are vastly superior to those at any maximum-security prison on the U.S. mainland.

I say this as the lawyer who has been involved in challenges to Guantanamo longer than anyone in the United States. I was counsel of record in Rasul vs. Bush, the first Guantanamo case in the Supreme Court, and today represent Abu Zubaydah, who was the first person tortured by the CIA and the man for whom the infamous torture memos were written. After our victory in Rasul, I was one of the first lawyers to go to the prison, and by now I cannot count the number of times I have returned there.

Conditions were not always as they are today. Beginning in late 2002 and continuing well into 2004, the interrogation techniques at Guantanamo were equal parts crude and cruel. It was stupidity, sometimes torture, and no amount of after-the-fact rationalization can make it better. Living conditions were likewise appalling, at first to facilitate the interrogations and later as a result of a misguided crackdown after three prisoners committed suicide. But interrogations have long ended, and since late 2006, conditions have improved.

That, in turn, should dispatch another myth: that improvements at the base are somehow the work of the Obama administration. Such drivel reveals a fundamental misunderstanding of American government. The fact is that the great majority of the senior career officers in the U.S. military never wanted to make Guantanamo into the pit that it became in late 2002. But it was not until late 2006 that the iron grip of Vice President Dick Cheney and his legal counsel and later chief of staff David Addington loosened enough that the officers could reclaim the prison and begin to reshape it in a more humane form. The military deserves the credit for improvements at the prison, not the Obama administration.

But if we agree that the truth is worth pursuing, then we should not stop halfway. We should not stop, as partisans may like, with the acknowledgment that conditions are much improved. The whole truth is that the prison remains a disaster. While the great moral bankruptcy of the base was once its conditions, today it is the shameful fact that scores of prisoners who have been cleared for transfer by two administrations remain in custody.

No one suggests they have committed a war crime; no one suggests they will be prosecuted in military or civilian court; everyone involved in their detention agrees they pose no threat to the United States and that they should be transferred to their home countries. Yet they languish for no better reason than because truth cannot breathe in this toxic atmosphere. They may never hold their children, or say goodbye to a dying mother. Their fate is the four walls of a prison cell, and the country should not congratulate itself on the fact that once the prison was worse.

Some say the prisoners may challenge their detention in court. They may seek, as the lawyers say, a writ of habeas corpus. But no one takes that seriously anymore. For all the foolish talk about judicial independence, the same hysteria has settled over both the Capitol and the courthouse. Today, the judiciary is to law not quite what the Chicago Black Sox were to baseball, but every bit what Keystone was to cops.

Yet so ridiculous the whole debate has become that even to utter these words risks a special sort of opprobrium — the mark of the traitor, either to the left, which is committed to using any excuse to bash the prison, or to the right, which invokes any falsehood so long as it helps keep every prisoner there forever. Today, what passes for intelligent discussion summons to mind James Russell Lowell, from more than a century ago:

I loved my country so, as only they

Who love a mother fit to die for may;

I loved her old renown, her stainless fame.

What better proof than that I loathed her shame?

Joseph Margulies is a lawyer with the MacArthur Justice Center and a law professor at Northwestern University. He is the author of "Guantanamo and the Abuse of Presidential Power," and is working on a book about the effect of Sept. 11 on national identity.

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