Occasional reprieve notwithstanding, Guantanamo prisoners' right to due process has been systematically subverted by each of the three organs of the U.S. state.

U.S. possession of Gitmo has survived both “apathy and revolution” and followed Woodrow Wilson’s 1907 maxim to a T:

Colonies must be obtained or planted, in order that no useful corner of the world may be overlooked or left unused.”

A new reason to make it useful was found after 9/11. The patron could use it as a place - eerily named Camp X-Ray - where prisoners could be tortured; confessions on non existent terror plots could be extracted; habeas corpus could be given a short shrift; and the country's superpower status could be asserted - all in the name of “war on terror”.

No habeas corpus for prisoners

How the Bush administration sought to scuttle Geneva Conventions and the doctrine of habeas corpus and how the Obama administration has chosen to remain helpless form an intriguing narrative.

The Geneva Conventions say that when a prisoner is captured in war or other military action, he can be a prisoner under either of two categories: first category is that of prisoners of war. Under this, they should be held in conditions comparable to those of the soldiers guarding them and cannot be subject to coercive interrogation.

The second category is one which includes non-state actors. Though it provides for them to be punished as criminals, it still requires them to be treated in a humane manner.

The Bush administration interpreted all terror suspects as belonging to the second category and said the “unlawful combatants”, [as defined by it] could be held indefinitely and could be interrogated using coercive techniques.

Keeping in mind the need to cause maximum damage to maximum number of “potential terrorists”, the administration chose Guantanamo Bay, thus completely sidestepping the principle of habeas corpus. The administration contended that courts can hear applications only “within their respective jurisdictions” and that Guantanamo does not come under U.S. sovereignty.

Nonetheless, in 2004, two Australian and twelve Kuwaiti citizens - among the approximately six hundred detainees at Guantánamo at that time - filed habeas corpus petitions in the federal district court of the District of Columbia, asking for release from custody; access to a lawyer; freedom from interrogation; and other forms of relief. The court was forced to hear them.

This culminated in the Rasul vs. Bush judgement (2004). Six judges decided in favour of the prisoners and held that federal jurisdiction included not just home territory but also foreign territory under effective and permanent control of the government. Hence, one judge said, “jurisdiction and control” of U.S. over Guantanamo being premised on a “permanent lease granted by Cuba” long ago, the prisoners shall be eligible for habeas corpus. The “permanent lease granted by Cuba” part of it may have irked Havana but came as a blessing for the prisoners.

This resulted in a fierce executive vs. judiciary battle over the next five years.

Following another decision given on the same day as Rasul - Hamdi vs. Rumsfield - the executive was forced to create ad hoc military tribunals, called Combatant Status Review Tribunals (CSRTs), affording minimum protection to prisoners but having a strong pro-government tilt.

The decision in Rasul however, encouraged thirty seven more detainees to file a habeas corpus petition.

Lakhdar Boumediene, an Algerian-born individual, was one of them. He had been arrested in Bosnia in October 2001 along with five others, on suspicion of planning attack on U.S. embassy there. Though released by the Bosnian Supreme Court, the six were classified as “enemy combatants” and sent to Gitmo.

In defending the Bush doctrine, the administration was duly aided by a Republican-dominated Congress which did not want to be seen as “soft” on terror. To supercede the Rasul decision, government passed Detainee Treatment Act, 2005, after the Boumediene petition was filed. Creating a series of hurdles in the way of Boumedine case, both the executive and the legislature sought to deny the petitioners the protection of due process.

Senator Obama vis-a-vis President Obama

Thankfully, the judiciary was not willing to be co-opted into this "war on prisoners' rights". The administration could annul judiciary's past pronouncements. However, the Bush Doctrine was not powerful enough to unilaterally amend the Constitution. A nine-judge Court, in Boumedine case, cited the “suspension clause” in the Constitution, under which the Congress could suspend habeas corpus only during an invasion or a rebellion. The conditions in which Gitmo detainees were captured came under neither.

The Court also called the current protection of military tribunals inadequate to protect the prisoners.

In addition, Justice Anthony Kennedy also wrote:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Ronald Dworkin, Frank Henry Sommer Professor of Law at New York University (NYU) - who passed away earlier this year - called it a great victory.He was sanguine about the Congress under the next administration when he said:

[...[I]t would be better if Congress, in the next administration, created a new statutory system. Any new scheme must have three goals. It must enable the government efficiently to try those prisoners it can show guilty of war crimes. It must permit the government, at least for some specified period, to prevent truly dangerous terrorists who cannot be prosecuted from carrying out more attacks. And it must try to insure that those who have been wrongly imprisoned are promptly freed.”

Senator Barack Obama at that time had welcomed the decision. However, the Obama administration - both in its first and second terms so far - has only been partially successful in reining in the Congress. The Congress, for its part, has only turned more bully-headed, preventing even the innocent detainees from being tried on U.S. soil.

So Dworkin’s optimism was somewhat misplaced.

Nevertheless, the Boumedine decision did provide some reprieve for the detainees. On November 20, 2008, Judge Richard J. Leon of the United States District Court for the District of Columbia ordered the release of Boumedine and his five co-prisoners.

On May 15, 2009, Boumediene was transferred to France, having relatives there. He has been since living with his family.

The detainees' hard-fought victory was short-lived. Following the decision, federal judges began to scrutinise carefully evidence presented by the government, resulting in the administration losing many cases. Finally in 2010, as a blow to the detainees, the D.C. Circuit Court asked the judges to taken a more pro-government stance. Its reasoning had been: evidence was collected under the “fog of war” and hence leniency needed to be shown to the government!

This caused whatever little ground detainees had covered to be brought to a zilch. According to a study by legal scholars at the Center for Policy and Research at Seton Hall University School of Law, between 2008 and July 2010, 19 of the 34 detainees who questioned the evidence were ordered to be released, a success rate of 56 per cent.

However, after July 2010, it came to just one of 12 detainees, just eight per cent. The federal appeals court, which took up those 19 cases which had ended up in favour of detainees, reversed or remanded every release decision.

If Obama’s first term was marked by failure in the face of lack of support from the Congress, his second term so far has been about lack of political will. And it is not that the civil society is apathetic in the face of all this. Cases have been filed. Two of three recent rulings on force feeding and humiliating treatment of prisoners has taken a pro-detainee stand. However, the Commander in Chief of the armed forces, the President, who has a final say on such matters, has been frustratingly silent.

As journalist Joe Noecera tells here:

And so it goes at Guantánamo Bay. The lawyers representing the detainees make motion after motion, appeal after appeal. It gets them nowhere. With the exception of that one Supreme Court ruling [Boumedine] — which had been systematically undercut by the court of appeals — the court system has opted out of dealing with the problem that the Guantánamo prison represents to the country. If the detainees are ever going to get relief, it will have to come from elsewhere.”

“Elsewhere” here clearly refers to the President.

And as Max Fisher puts it here:

For the 86 prisoners, it’s a plight almost Kafkaesque in its cruel absurdity: though the United States believes they should be released from their concrete cells at Guantanamo Bay, they have stayed in prison, often for years, not because of any crime they committed or immediate threat they pose, but because of diplomatic and political hurdles out of their control.”

Obama has chosen to blame it on Congress recalcitrance. However, it is more of a lack of political will on his own part that has caused the status quo to persist. He can justify it by telling that many of those detained are “potential terrorists”. The reasoning won't be entirely misplaced: according to a recent intelligence report, 16 to 27 per cent of those released from Gitmo did participate in terror acts since leaving the facility.

Trans-Kafkasque situation

However, does this justify retaining all of them, treating them like they have already committed a terror act? Doesn’t it feed the anti-American sentiments in them and in the minds of many others in the Muslim world? Most importantly, isn’t keeping the detainees going to hasten their entry into the terrorism machinery? Perhaps faster than releasing them would?

To present the figures, as given in this piece, out of the 166 detainees, 86 have been cleared for release”. Hence, nothing justifies keeping them in prison anymore. For 47 others - considered by the administration and by Pentagon “too dangerous for release” - evidence was obtained through torture, hence cannot be used for prosecution under Geneva Conventions. This puts administration in a dilemma.

Among the rest, 24 are considered “eligible for prosecution” and nine have been charged with a crime or have been convicted.

Is Congressional defiance the only reason for Obama’s dilly-dallying? Or is it his own political calculations - that potential terrorists may be created?

Rep. Howard P. McKeon (R-Calif.) told The New York Times recently that Congress recently gave the Pentagon the power to circumvent some of the restrictions that make it tough for them to release detainees to foreign countries, but that the Pentagon doesn’t appear to have taken advantage of this. “It’s just a political game,” he added. “They like to point to this as our intransigence, but we have worked with them.”

Though Max Fisher, in his piece, calls it a Kafkaesque situation for the 86 prisoners who can be released, I feel the situation has transcended Kafka. It is more of a post-Kafkaesque situation now, akin to that of the lead protagonist in David Lynch’s Eraserhead, where the protagonist finds himself tortured from all directions and gets relief only after death. Another example could be the same director’s Lost highway where the protagonist, all of a sudden, finds himself in a death chamber, resulting in an endless streak of psychedelia.

To quote the sailor’s song again - one sung during the first decade of the 20th century when Gitmo came under U.S. control,

So, hurray for old Gitmo on Cuba’s fair shore

The home of the cockroach, the flea and the whore

We’ll sing of her praises and pray for the day

We’ll get the hell out of Guantánamo Bay.

United States is in no great hurry to “get the hell out”. However, it has surely been treating the prisoners like pests. The prisoners are left praying for the day when they can get the hell out of Gitmo bay and come back to haunt their erstwhile patrons, this time as radicalised terror zombies attacking the "Gitmo Guesthouse".