How the establishment of Guantánamo Bay corrupted our laws and policies from the outside in
In January 2002, the Guantánamo Bay Detention Facility in Cuba opened its gates for the first 20 detainees of the war on terror. Within 100 days, 300 of them would arrive, often hooded and in those infamous orange jumpsuits, and that would just be the beginning. At its height, the population would rise to nearly 800 prisoners from 59 countries. Eighteen years later, it still holds 40 prisoners, most of whom will undoubtedly remain there without charges or trial for the rest of their lives. (That’s likely true even of the five who have been cleared for release for more than a decade.) In 2013, journalist Carol Rosenberg astutely labeled them “forever prisoners.” And those detainees are hardly the only enduring legacy of Guantánamo Bay. Thanks to that prison camp, we as a country have come to understand aspects of both the law and policy in new ways that might prove to be “forever changes.”
Here are eight ways in which the toxic policies of that offshore facility have contaminated American institutions, as well as our laws and customs, in the years since 2002.
1. Indefinite detention: The first item on any list of Guantánamo’s offspring would have to be the category “indefinite detention.” In the context of U.S. law, until that long-ago January, the very notion was both foreign and forbidden. Detention without charge or trial was, in fact, precluded by the Fifth Amendment’s right to due process, a reality that had been honored since the founding of the republic. Though the detainees there were eventually granted access to lawyers and the right to have their cases reviewed, for only a handful of them has that right of being charged or released been realized.
The indefinite detention that began at Guantánamo Bay has now spawned its mirror image in the camps for undocumented immigrants (and their children) along the U.S. Mexican border. Even the optics there are proving to be carbon copies of Guantánamo: the open-air wire cages, the armed guards, and the physical abuse of migrants and asylum seekers, both adults and children. At Guantánamo Bay, the government didn’t distinguish between juveniles and adults until years after the facility had opened, another example of a policy Gitmo brought into existence that was previously inconceivable in the U.S. legal system. In some ways, in fact, the situation at the border may be even worse, as the detained there are kept in unsanitary conditions without sufficient access to doctors.
And here’s another way the border is one-upping Guantánamo. The government was required to give the International Committee of the Red Cross access to its wartime detention facilities, so the health and medical conditions at Gitmo were monitored and kept to a relatively decent standard once those initial three months of open-air cages ended. In the border detention centers, however, tots have been left in soiled diapers, housed along with their mothers and fathers in bitterly cold, jail-like conditions, and denied adequate medical attention, including vaccines.
2. A new legal language for the purpose of bypassing the law: From the very start, Guantánamo challenged the normal language of law and democracy. The detainees there could not be called “prisoners” as they would then have been considered “prisoners of war” and so subject to the protections of the Geneva Conventions. The cages and later prefab prison complexes (transported from Indiana) could not be labeled “prisons” for the same reason. So the government invented a new term, “enemy combatant,” derived from “unlawful enemy belligerent,” that did have legal standing. The point, of course, was to create a whole new legal category that, like the offshore prison itself, would be immune to existing laws, American or international, pertaining to prisoners of war.
This evasion of the law has not only persisted to this day, but has crept into other areas of Washington’s foreign policy. Recently, for instance, Trump administration lawyers invoked the term “enemy combatant” to justify the drone killing of Iranian Major General Qassem Suleimani in Iraq. Meanwhile, at the border, asylum seekers have been transformed into “illegal immigrants” and, on that basis, denied essential rights.
3. Legal cover: While a new language was being institutionalized, the Department of Justice offered its own version of legal cover. Its Office of Legal Counsel (OLC) was enlisted to provide often-secret legal justifications for the policies underlying what was then being called the Global War on Terror. The OLC would, in fact, devise farfetched rationales for many previously outlawed policies of that war, most notoriously the CIA’s torture and interrogation programs whose “enhanced interrogation techniques” were used at the Agency’s “black sites” (or secret prisons) around the world upon a number of high-profile detainees later sent to Guantánamo.
Before 9/11, few outsiders even knew of the existence of the Office of Legal Counsel. In the years since, however, it’s become the White House’s go-to department for contorted, often secret legal “opinions” meant to justify previously questionable or unauthorized executive actions. Notoriously, OLC memos justified “targeted killings” by drone of key figures in terror groups, including an American citizen. Recently, for instance, that office has been used to explain away a number of things, including why a sitting president cannot be indicted (see: former special counsel Robert Mueller) or the granting of absolute immunity to White House officials so they can defy subpoenas to testify before Congress (see: House impeachment hearings). And as any OLC memos can be kept secret, who’s to know, for instance, whether or not similar legal memos were written to cover acts like the recent killing of Major General Suleimani?
4. The sidelining and removal of professionals: From its inception, Guantánamo’s supervisors shoved aside any professionals or government officials who stood in their way. Notably, then-Secretary of Defense Donald Rumsfeld appointed individuals to run Guantánamo who would report directly to him rather than go through any pre-existing chain of command. In that way, he effectively removed those who would contradict his orders or the policies put in place under his command, including, for instance, that prisoners on hunger strikes should be force-fed.
In the Trump era, this dislike of professionals has spread through many agencies and departments of the government. The twist now is that those professionals are often leaving by choice. The State Department, for instance, has dwindled steadily in size since Donald Trump took office, as those disagreeing with administration policies have simply quit or retired in significant numbers. Similarly, at the Pentagon, in a steady drumbeat, officials have resigned or been fired due to policy disagreements.
5. The use of the military for detention operations: In the fall of 2002, General Tommy Franks, the head of U.S. Central Command, complained to Rumsfeld that his troops were being wasted on detainee operations. Hundreds of prisoners had been captured in the invasion of Afghanistan that began in October 2001 and Army personnel were being asked to serve as guards in the detention centers set up at the new American military bases in that country. Though many of those detainees would subsequently be transferred to Guantánamo, the military was not off the hook. A joint task force of all four of its branches would be deployed to Guantánamo to serve as guards for the arriving detainees. Some of them insisted that it was not a task they were prepared for, that their previous service as guards at military brigs for service personnel who had broken the law was hardly proper preparation for guarding prisoners from the battlefield. But to no avail.
Today, that military has been deployed in a similar fashion to the southern border in support of detention operations there, a steady presence of more than 5,000 troops since the early days of the Trump presidency, including active-duty military personnel and the National Guard. Under U.S. law, the military is not authorized to carry out domestic law enforcement. A letter from 30 members of Congress to Pentagon Principal Deputy Inspector General Glenn Fine made the point: "The military should have no role in enforcing domestic law, which is why Trump’s troop deployment to the southern border risks eroding the laws and norms that have kept the military and domestic law enforcement separate." Fine is now conducting a review of that deployment, but who knows when (or even if) it will see the light of day.
6. Secrecy and the withholding of information: When it came to Guantánamo, Pentagon officials discussing the number of detainees there would usually offer only approximations, rather than specific numbers, just as they would generally not mention the names of the prisoners. Journalists were normally kept from the facility and photographs forbidden. Meanwhile, a blanket of secrecy shrouded the prior treatment of those detainees, many of whom had been subjected to abuse and torture at the black sites where they were held before being transported to Gitmo.
Today, on the border, the policy towards journalists, infamously dubbed “the enemies of the people” by this president, has been distinctly Gitmo-ish. Information has been withheld and efforts have been made to keep both journalists and photographers from border detention camps. Journalistic Freedom of Information Act requests have often been the singular means by which the public has gotten some insight into government border policies. Even members of Congress have been denied access to the detention facilities, while the U.S. Customs and Border Protection Agency has failed to keep records that would enable migrant families to reunite or let any oversight agency accurately determine the number of detainees, particularly children, being held.
In the theater of war, similar secrecy persists. Just this month, for example, the administration refused to present Congress (no less the public) with evidence of its assertion that the Iranian major general it assassinated by drone posed an imminent threat to the United States and its interests.
7. Disregard for international law and treaties: In characterizing the Geneva Convention as “quaint” and “obsolete” as part of its justification for the detention and treatment of prisoners in the war on terror, President George W. Bush’s administration began to steadily eat away at Washington’s adherence to international treaties and conventions to which it had previously been both a signatory and a principal moral force. What followed, for instance, was a contravention of the Convention Against Torture, both in the CIA’s global torture program and in Washington’s toleration of the mistreatment of detainees it rendered to other countries.
The lack of respect for treaty obligations and for the sanctity of international cooperation in matters affecting world peace, health, and harmony has only spread in these years with Trump administration decisions to withdraw from agreements and treaties of various sorts. These included: the Paris climate accord, the nuclear agreement with Iran, and Cold War-era nuclear arms treaties with Russia (the Intermediate Nuclear Forces agreement last year and, more recently, the ignoring of warnings from the Russians that there will not be sufficient time to negotiate the renewal of the essential New Start nuclear arms limitation agreement that will lapse in 2021). As a result, the world has become a more dangerous and unpredictable place.
8. Lack of accountability: Although some of the newly legalized policies of the Bush era, including the use of torture, were ended by the Obama administration, there has been no appetite for holding government officials responsible for illegal and unconstitutional conduct. As President Obama so classically put it when it came to taking action to hold individuals accountable for the CIA’s torture program, it was time “to look forward as opposed to looking backwards.”
Today, Donald Trump and his team expect a similar kind of Gitmo-style impunity for themselves. As he’s said many times, “I can do whatever I want as president.” The withholding of military aid to Ukraine in an attempt to get information on rival Joe Biden (and his son) is but one example of the license he’s taken. A sense of immunity from the law is deeply entrenched in this administration (as the refusal of his key officials to testify before the House of Representatives has shown).
It’s worth noting that the House impeachment of the president was a rare step forward when it comes to holding officials accountable for violations of the law in this era (though conviction in the Senate is essentially unimaginable). Whether such accountability will ever take hold in the context of global policy -- in the killing of Suleimani, in the separation of children from their families at the border, or in the context of election interference -- remains to be seen. At the moment, it seems unlikely indeed. After all, we still live in the Guantánamo era.
The toll of the war on terror in terms of lives and treasure has been well documented. It has cost American taxpayers at least $6.4 trillion (and probably far more than that), while resulting in the deaths of up to 500,000 people, nearly half of whom are estimated to have been civilians (a number that doesn’t include indirect deaths from disease, starvation and other war-related causes). Meanwhile, a new Gitmo-ized narrative for the law and national security policy has come into being.
The irony is unmistakable. The Guantánamo Bay detention facility was purposely established outside the U.S. so that it would not be subject to the country’s normal laws and policies. As many warned at the time, the notion that it would remain separate and anomalous was sure to be illusory. And indeed that has proved to be so.
Instead of remaining an offshore anomaly, Guantánamo has moved incrementally onshore and that is undeniably its indelible legacy.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law, as well as the editor-in-chief of the CNS Soufan Group Morning Brief. She is the author and editor of many books, including Rogue Justice: The Making of the Security State and The Least Worst Place: Guantánamo’s First 100 Days.
Joshua L. Dratel, a New York-based lawyer, litigates key national security cases involving terrorism, surveillance, and whistleblowers. He is a contributor to Greenberg’s newest volume, Reimagining the National Security State: Liberalism on the Brink.
Julia Tedesco helped with research for this article.
Copyright 2020 Karen J. Greenberg and Joshua L. Dratel