By now, it is clear that the Obama administration will miss its self-imposed deadline of January 22, 2010 to close down the Guantanamo prison, as President Obama himself has admitted. With this, the United States could begin to look like it is sliding back to its bad old days of lawlessness when seen as part of a troubling trend of worsening human rights commitments.

Its own fault

The Obama administration’s failure to close down Guantanamo is entirely due to its own fault as it was caught in an impossible maze of contradictions from the start. First, while the Obama administration promised to close down Guantanamo, it continued to assert its right to hold some detainees indefinitely without trial or charge. That looked like it was taking away with the left hand what it was handing out with its right hand. This policy undermined the goal of shutting down Guantanamo, as opponents of the closure argued in favour of keeping it open to hold these detainees, while supporters of the closure felt morally abandoned. From a human rights perspective, it seemed that the Obama administration did not seek to address the root problem about Guantanamo, which was that it enabled indefinite detention without trial or charge, of anyone sent to that legal black hole. In other words, closing down Guantanamo was not just a symbolic act that would eliminate the most visible stain on America’s human rights record. It was also supposed to begin the process of ending America’s practice of unlawful indefinite detention policy. That didn’t happen.

Second, the Obama administration never agreed to change the policy that the US had arrogated to itself, which could be described as a ‘global right to arrest’. Under this policy, justified under the Global War on Terror (GWOT), now soothingly renamed ‘Overseas Contingency Operation’ (OCO), the United States could seize any individual from any country on earth, as long as it suspected him/her of engaging in terrorism or support thereof. Under international law, there is no basis for any country to exercise this wide extra-territorial authority to engage in arrest, especially in areas where it is not even engaged in an armed conflict, whether international or non-international, as defined in the Geneva laws of war. The most controversial actions of the US stemmed precisely from this policy, and it would have been entirely appropriate for the Obama administration to confront it squarely, if it wanted a ‘new beginning’ as President Obama put in his famous Cairo speech in June 2009. The rest of the world suspects that as long as the U.S. has not renounced this right to arrest, it will never close down Guantanamo — at least in the sense of give up the policies that make Guantanamos necessary — or give up the right to hold people indefinitely without charge.

Third, the Obama administration has retained the policy of rendition, including by the CIA, whereby it can hand over individuals to other countries, which then torture and commit other abuses. Despite the blow received to this policy when an Italian Court convicted 23 agents of the CIA for kidnapping in November 2009, the policy of rendition itself has not been subjected even a serious public debate in the U.S. From a legal perspective, there are two problems with rendition. First, rendition rests on an unlimited ‘global right to arrest’ as mentioned above. There is no basis for this in international law and certainly in the domestic laws of most countries, as the Italian Court’s verdict shows. Second, rendition leads to torture, which is absolutely prohibited under international law. While President Obama prohibited torture in absolute terms in his directive in early 2009, and reiterated that prohibition in his Cairo speech in June 2009, and before the U.N. General Assembly in September 2009, he has undermined his own commitment by allowing rendition to continue. Why does this matter for Guantanamo? So long as the U.S. asserts a right to grab anyone from anywhere as part of its global OCO, it will continue to need a processing centre while it extracts intelligence and decides on the need for rendition. What that means is that there will always be a need for Guantanamo.

Finally, the Obama administration’s Guantanamo policy is tied up with its policy towards the use of military commissions since it needs to decide where the detainees will be brought to trial. While the Supreme Court ruled in 2008 that the standard of review under the Detainee Treatment Act did not meet full habeas review standards, and therefore the foreign detainees in Guantanamo did have access to federal court review, it did not rule the Military Commissions Act itself unconstitutional. The Obama administration has therefore revised the Military Commissions Act by a bill passed in October 2009 and sought to make it better. But the policy of the administration continues to be legally schizophrenic. It creates a two-track justice process, involving prosecution before federal courts as in the case of the five Al-Qaeda plotters of 9/11 who will be brought before a federal court in Manhattan, as well as prosecution before military commissions for ‘unprivileged enemy belligerents’ who used to be called ‘unlawful enemy combatants’ by the Bush administration. Instead, the Obama administration could have simply decided to bring all civilians before federal courts if it had evidence against them of crimes, while prosecuting armed combatants under the regular system of military justice. The fact that only non-U.S. citizens will be brought to trial before military commissions will offend public opinion worldwide and lead to charges of unfairness and double standards. The Obama administration’s decision to close Guantanamo is politically undermined by the legally dubious means of retaining military commissions. Instead of showing intolerance of criticism of its Guantanamo policy as when it recently fired the former chief prosecutor of military commission from his current job at the Congressional Research Service for writing an op-ed that criticised the two-track justice policy of federal courts and military commissions, the Obama administration needs to revisit and revise this policy.

Worries growing

The human rights community and U.S. and world public opinion welcomed the announcement by President Obama to close down Guantanamo, repeated many times during the year by him. But as other regressive policies connected to Guantanamo have continued as before, as the Guantanamo deadline passes us in January, and as the President defends the right to wage ‘just war’, as he did in his Nobel acceptance speech recently, worries are growing that he may not be a transformational President in human rights terms after all, even despite his best intentions.

( Balakrishnan Rajagopal is Associate Professor of Law and Development, Massachusetts Institute of Technology

More In: Comment | Opinion