During President Obama’s State of the Union address, he recommitted to his campaign promise to close Guantanamo Bay. And yesterday, he took a significant and welcome step toward this goal by releasing ten more Yemeni prisoners to the country of Oman. For those keeping score at home, this brings the remaining prisoner population down to 93.
This is undeniably good news, and President Obama should be applauded for it. But we should be careful to point out that Obama’s stated reasons for closing Guantanamo leave something to be desired. In his State of the Union address, this was the rationale he offered:
It’s expensive, it’s unnecessary and it only serves as a recruitment brochure for our enemies.
All of that is true, but he missed the key point–that indefinite imprisonment without charges is inherently unjust. He may be framing it this way for political reasons, but it presents serious obstacles down the road. If it’s just the expense, does that mean it would be okay if Republicans agreed to raise taxes to pay for it? Moreover, it’s part of the military, and virtually no Republicans even pay lip service to the idea of cutting that. Many Republicans also claim that Guantanamo is necessary, so simply declaring it otherwise is hardly persuasive. And finally, most conservatives, and–depending on the speech, often Obama himself–reject the idea that terrorism is a reaction to US policies. Thus, we see that all of these arguments are easily countered by opponents using the same rhetoric they already use. This does not bode well for the future success of this effort. It also makes it possible for Obama to continue many of Guantanamo’s most appalling features in the name of political expediency. Indeed, that appears to be the plan. More on this later.
The ten newly released prisoners had already been cleared for release some time ago. But the history of Guantanamo Bay has proved that getting cleared for release and actually being released are very different things. After this most recent release, there are still 34 men that remain in prison at Guantanamo, despite being cleared for release. Most or all of these had been cleared for release as early as 2010 and in some cases, even earlier than that. But due to the challenges of repatriating prisoners to unstable countries (like Yemen) and a combination of political obstruction (mostly from Republicans) and indifference (from just about everyone else), even the cleared prisoners have remained stuck in prison.
On its face, this is appalling. But it’s made even worse when you realize what it means to say they have been “cleared for release.” This does not mean that there just wasn’t sufficient evidence to prove them guilty, but we all know the bastard did it, whatever “it” was. That’s possible under our regular criminal justice system, but not at Guantanamo. The prevailing legal system in place at Guantanamo essentially switches the burden of proof to the defendant. Instead of innocent until proven guilty, it is guilty unless proven innocent. So when we say the prisoners were cleared, it doesn’t just mean not guilty; in most cases, it means there was no reason to imprison them in the first place.
Since we’re on the subject, it’s worth clarifying what happens to the people that can’t be proven innocent. They fall into two categories. If there’s enough admissible evidence of wrongdoing, they may get charged for crimes and prosecuted, most likely in the military courts. But since the US tortured a lot of people at Guantanamo, most evidence is inadmissible and few people fall into this category. Instead, a new and nefarious legal classification was created and legitimized by the Obama Administration. In the words of the White House Press Secretary, these are the people that “too dangerous to transfer and…cannot be effectively prosecuted by justice system.” That is, there isn’t enough evidence to win a conviction, but they’re still really dangerous. In a society that really believed in the rule of law, there’s a far simpler label that would apply to such people: free to go. But as it stands, this group (estimated to be 27) is destined to be imprisoned forever, without ever being charged with anything. The existence of this group may explain why Obama is not making a moral or legal case against Guantanamo–because members of his Administration plan to continue the same abuses, just at a different facility located on the US mainland.
So the news out of Guantanamo today is some of the best news we’ve heard in a while on this issue. Ten innocent people are going to get to start rebuilding their lives, and the US is that much closer to closing the facility for good. But we should remember that the fundamental issue was never really Guantanamo; the problem was indefinite detention. And unfortunately, that problem looks like it is here to stay.