Guantanamo’s symbolism has shifted fundamentally over the three presidential administrations that it has been used as an island prison. It’s worth reconsidering that history—and what it means in the present context of a president who has openly stated his animus toward Muslims—on the occasion of the 16th anniversary of the prison’s opening. If the United States is ever to move past the moral and legal morass of what it has done and continues to do at that prison, it must acknowledge these realities.
That is why on Thursday, the Center for Constitutional Rights—of which I am the legal director—and other lawyers have filed new habeas corpus petitions on behalf of 11 men who have been detained in Guantanamo, most of them for the past 15 years, without charge or trial.
For the early years of the George W. Bush administration, Guantanamo Bay took its place as the crown jewel of the imperial Bush–Cheney “war on terror,” and all the corresponding chaos, incompetence, cruelty, and illegality that attended the era. Bush administration officials chose this naval station—expropriated from Cuba nearly 100 years earlier—for detention operations specifically in order to avoid the jurisdiction of U.S. courts and therefore—in a dramatic break from historical military practice—deny the 790 men and boys brought there the protections of any law. The Bush administration sought to justify its dramatic cooption of executive power and gross distortion of international law by claiming that all detainees were the “worst of the worst” and defying any attempts at judicial review of the legality of this experiment in incommunicado detention and corresponding torture and degrading treatment.
But between the time CCR filed the first habeas petition on behalf of British and Australian detainees in 2002 and the 2008 election, the narrative fundamentally changed. The Supreme Court four times rejected the Bush administration’s assertion of executive prerogative, and an understanding emerged that the vast majority of the detainees were far from the “hardened killers” that were being held up as exemplars. More likely, they were individuals in the wrong place at the wrong time, or who had been sold for Donald Rumsfeld–conceived bounties. Both of the main party candidates in the 2008 presidential election called for Guantanamo’s closure. Over those six years, the iconography of the orange Gitmo jumpsuit was transformed from a muscular projection of Bush–Cheney determination to an international symbol of cruelty and lawlessness.
Which seemed to lead inexorably to President Obama’s pledge to close the prison within a year of taking office. After all, Obama was, to his supporters, an enlightened constitutional law scholar who could eloquently articulate the dangers of military overreach and promise of an American leadership that respected human rights. But as with much of his presidency, Guantanamo ultimately came to symbolize a distance between eloquence and action. Most of the 241 detainees Obama inherited languished at the prison. Several, like Adnan Latif, the emergent face of indefinite detention, took their own lives out of despair. During this era, the courts took a drastically different approach given Obama’s asserted commitment to release detainees expeditiously and responsibly. Ultimately, though, 41 men were still left at the prison by the time he left office.
Guantanamo has always been a prison exclusively for Muslim men and boys. That reality—like so many other ugly ones that have emerged in the past year—is no longer subtext. Unlike his two predecessors, who together released nearly 750 detainees, President Trump has effectively pledged to release none and even to “load it up with some bad dudes.” Any Trump decision to detain will not be based on individual circumstances like conduct or status of a detainee, nor is it based on any tailored national security deliberation: It is solely a product of executive hubris and animus. Just as Guantanamo was symbolic of the Bush administration’s muscular but misguided response to terrorism, for Trump it represents the beachhead for his explicitly Islamophobic worldview and that of the political movement he leads.
Trump’s view of the prison will never accommodate reason or law; it must be seen as inextricably connected to his statements vowing a “complete shutdown of Muslims” into the United States. He has also argued that Muslims inherently suffer from a “sickness”; equated religious equality with “committing suicide”; and described Islam a religion that categorically “hates us.” Circulating a false story about Gen. John Pershing, Trump twice suggested that Muslim terrorist suspects should be shot by bullets dipped in pig’s blood. He took little time to suggest that the accused Muslim killer who took eight lives on the West Side Highway of New York last year should be denominated an “enemy combatant” and subject to military law, while not questioning once whether any of the spate of white male mass killers should similarly be treated outside the criminal process. (Ultimately, he backed a criminal trial in that case.)
Thirteen of the remaining 41 Guantanamo prisoners are stuck in military commissions proceedings that have been a legal quagmire from the beginning, five had actually been cleared for release by the Obama administration as they posed no security threat, and the remaining 23 languish as “forever detainees.” Many of the men left in Guantanamo are aging, sick, or suffering the devastating psychological or physiological consequences of indefinite detention in a remote prison camp where they have endured brutal conditions designed to break them, and where the aura of forever hangs heavier than ever before. Our new legal filings argue that Trump’s diktat about detainees—tinged as it is with anti-Muslim bias—cannot stand, and that absent judicial intervention of the kind undertaken during the Bush administration many of the detainees may never leave Guantanamo alive, let alone ever having been charged with a crime. They cannot justly be detained forever in connection to a “war” that may never end.
In our constitutional system, the courts must respond—as they have in the iterative Muslim ban cases and the transgender troops ban—aggressively to executive overreach, when lives and liberty are at stake. In so doing, the courts must also change the legal narrative that has governed Guantanamo for more than a decade. Courts and commentators have been too willing to accommodate the experimental legal logic of Guantanamo for this set of Muslim prisoners. Under this logic, individuals can be detained, without charge, for the duration of a conflict without foreseeable end. That has always been a flawed presumption, and those who promoted that logic under a seemingly responsible President Obama will see it willfully distorted by the malicious new president.
Still, in this fraught constitutional environment, Guantanamo actually still matters. It presents the courts with an opportunity to affirm a simple but fundamental constitutional principle: all individuals, including Muslim prisoners, must either be charged with a crime or released. Life sentences should not be handed out based on executive say-so, no matter who the executive is.