Gitmo: Seller’s Remorse

Photographs that allegedly depict detainee abuse have generated debate in Congress, with Senators Lindsey Graham (R-South Car.) and Joe Lieberman (I-Conn.) saying on June 11, 2009 that “if the House drops the provision [from the Senate bill] that would prevent these photos from being released … American soldiers are going to be subject to increased violent attack…”

The debate has also prompted discussion of how the Obama administration will handle the split among Democrats on this issue. A panel hosted on June 15, 2009, by the Center for American Progress (CAP) discussed the issues surrounding preventive detention at Guantanamo and the need to “restore the credibility” of the United States.

Claudia Hillebrand, a Co-Convenor for the Department of International Politics at Aberystwyth University in the United Kingdom discussed the issue of “whether European states are willing to take in Guantanamo detainees or not.” “If those [Guantanamo detainees] are understood to be a security risk to the European Union, the European Union state will not be allowed to take them in,” she said.

Hillebrand noted that “in Europe, there is a slight disappointment about how things are developing” because “the excitement about Obama coming into the Presidency was…very high, and the expectations were probably too high and [Obama] could never fulfill them.”

“The first set of obstacles that the administration faces are administrative and internal,” said Heather Hurlburt, the Executive Director of the National Security Network. “What all of that adds up to is a timetable that is going to go much more slowly than any of us had originally anticipated…”

Hulbert noted that “virtually every state” that has a prison facility “considered suitable to house detainees” passed a “bill to bar the transfer of detainees there.” Another factor slowing down the process, according to Hulbert, has been Congressional members who were once “prominent supporters of closing Guantanamo” now seeming “very anxious about how that would be done.”

Moderator Brian Katulis, a senior fellow at CAP, asked whether the preventive detention of Guantanamo detainees was justified. “There is, in fact, pretty well established jurisprudence going back to World War II and even before … that you could detain enemy combatants for an indefinite period … so it’s not correct to say there is no precedent for it in U.S. law,” Hulbert said.

“However uncomfortable the concept of preventive detention makes me, the concept of our intelligence being used to put people into indefinite detentions in Jordan or Libya or Morocco … makes me at least as uncomfortable,” Hulbert continued. “So I think there is a limited role for preventive detention as the lesser of two evils.”

Another issue the panel discussed concerned structures for review which incorporate checks and balances. Issandr El-Amrani, publisher of Arabist.net, a blog that covers the politics and culture of the Arab world, encouraged “attention to the minutiae” when it comes to reviewing legislation such as the Patriot Act because there are “complex legal issues” involved. Hulbert stated that she believes it is important to find “a way as our constitution foresees for a person to challenge his status” through “structures for review that actually mean something.”

In Boumedine v. Bush, the Supreme Court ruled 5-4 that terror suspects detained at Guantanamo have the right to seek a writ of habeas corpus in U.S. Federal Court. Justice Scalia noted in his dissent that the majority “admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States.”

The panelists were likewise unable to formulate a consensus on this point, instead focusing on possible reforms to the Patriot Act. The reforms considered are certain to prompt continued debate about the changing role of habeas corpus in American jurisprudence, particularly in regards to foreign judgments. “The Patriot Act isn’t perfect, but it does come up for review every few years,” Hulbert said. Hulbert argued that “people other than whoever the President is” should have “the opportunity to have some influence over it.”

Hillebrand argued that “It seems impossible … to close Guantanamo Bay by the end of 2009.” Hulbert disagreed, saying that Guantanamo “will be closed” because there is “so much credibility riding on the line,” but cautions that the alacrity for its closure might yield results that “will not make the human rights community very happy.”

Brittany Fortier is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.