On his third day in office, President Barack Obama signed three executive orders. These executive orders, which required the closure of the Guantanamo Bay detention facility and an end to coercive interrogation techniques in the name of fighting terror marked a substantial break from the policies of the Bush administration.
The executive order, signed on January 22, 2009, entitled “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities”, directed the closure of the notorious prison facility as “soon as practicable and no later than a year after the passage of that order”.
Nearly two months after the passage of the executive order, on May 20, 2009 the United States Senate voted 90-6 against the closure of the Guantanamo Bay prison. The fear guiding the Senate’s vote was that if the prison, which has been in operation since January 11, 2002, was shut down, then dangerous terrorists now held at Guantanamo would be brought on to US soil.
If they were given civilian trials that did not result in convictions, the argument alleged, these dangerous terrorists would then be released among the general population, thus posing an incredible threat to the US population.
On May 21, President Obama, in the footsteps of the Senate’s decision, took to the airwaves to defend his administration’s decision to order the closure of Guantanamo. In his speech, President Obama laid out his indictment against the Bush administration, describing its policies as an abandonment of America’s Constitutional values and principles:
“Instead of strategically applying our power and our principles, we too often set those principles aside as luxuries that we could no longer afford. And in this season of fear, too many of us — Democrats and Republicans; politicians, journalists and citizens — fell silent. In other words, we went off course”. The closure of the prison, he said, was an imperative if America was to return to its values and regain its moral authority in the world.
Rebutting the arguments that motivated the Senate vote, he cited how there had been only two terror convictions in the seven years of Guantanamo’s existence. He recounted the fact that many dangerous criminals, including convicted terrorists such as Ramzi Yusuf and Zacarias Mossaoui remain imprisoned on US soil.
But after these assurances to his most loyal constituency on the Left, President Obama then went on to address another part of his administration’s policy on detainees that has been criticised by human rights groups.
He insisted that his decision to continue military trials for some detainees was not a reversal of his previous position but rather a conscious move to reform a flawed process. In other words, under the Obama administration military trials were being invested with those requirements of due process whose absence had been the basis of their reprehensibility.
Statements obtained under torture would not be permitted as evidence, detainees would have greater latitude in selecting their own counsel and there would be a presumption against the use of hearsay evidence. If this second part of President Obama’s speech made an otherwise clear opposition of the Bush administration’s policies murkier; the last portion went even further.
At the end of the speech, President Obama admitted that there was indeed no concrete response as to what would be done with those detainees who could not be convicted but who still posed a danger to US citizens and thus could not be released. These people, Obama admitted, “remain at war” with the United States and thus could not be released.
This last section of President Obama’s speech betrayed the ultimate conundrum facing his administration. Ultimately, deciding where the American Constitution applies also implies determining the boundaries between law enforcement and war, and concomitantly those between the individual culpability of a criminal and the collective culpability of a prisoner of war fighting for an army.
Beneath these considerations lies the thorny philosophical conundrum of the universal or territorial applicability of principles, which necessitate that true justice must include fair process, the ability to evaluate and examine evidence against the accused, the right to legal counsel and other such procedural provisions available under habeas corpus.
This legal reality was echoed by a US District Court this April, when it ruled that three detainees held by the United States at Bagram Airbase in Afghanistan, could also challenge their detention in US courts because “other than the fact that they were held at Bagram, they were no different from Guantanamo detainees”.
While the ruling in the lower court was limited and left many questions unanswered, it did highlight the core issue facing the division of prisoners into law enforcement and military categories.
If the applicability and availability of US Constitutional rights is predicated on the fact that the United States exercises sovereignty over a particular region, then undoubtedly there is little difference between Bagram and Guantanamo. Indeed, the applicability of due process and procedural justice are not circumscribed by geographic proximity to the US mainland and US courts would be strained to find legal arguments to assert as such.
However, what these distinctions do highlight are the complexities inherent in simultaneously construing US national security as a hybrid of law enforcement as well as military initiatives.
Much has been said by President Obama as well as by others regarding the need to revamp institutions in response to the challenges posed by a newfangled non-state enemy, but precious little attention is being devoted to the intrinsically convoluted project of trying to paint an enemy both as a military foe fighting an organised battle and a criminal individually culpable.
While the Obama administration may have made a credible and commendable effort to reverse some of the most reprehensible policies of the Bush administration, its continuation and even expansion of military initiatives creates an inherent challenge to recasting the war on terror as law enforcement rather than a military challenge.
There may be many miles between Guantanamo and Bagram, but the task of returning to the values enshrined in the US Constitution and regaining lost moral authority necessitates the recognition that the rule of law and the requirements of justice transcend territoriality.
Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at firstname.lastname@example.org
Article republished by permission of the author & DT