Terror and the rule of law

President Barack Obama’s April 30 statement that the prison camp at Guantánamo Bay must be closed renews the pledge he made, at the start of his first term, to shut the place down. He now says the prison is not necessary to “keep America safe,” adding that it is inefficient, damages the standing of the United States, lessens counter-terrorism cooperation with U.S. allies, and is a “recruitment tool” for extremists. He has also asked officials to review operations at Guantánamo. The immediate cause of the announcement is probably fierce publicity over the hunger strike at the notorious prison, which is in its third month and now involves over 100 of the 166 detainees still held there, many for 11 years already. They are rightly bitter about their continued detention without charge or trial; a senior U.S. officer has told Congress that they were “devastated” when the President, early in his first term, backed away from closing Guantánamo and then failed to move the inmates to a federal prison on the U.S. mainland.

While Mr. Obama’s statements about the camp are accurate — for example, it costs twice what a comparable camp on the mainland would — it is unfortunate that his statement is put solely in instrumental terms and omits fundamental juridical principles. The President says Congress has in the past stopped him from closing the camp, but he has himself signed legislation restricting the transfer of detainees to other countries; this covers some of the 89 already cleared for release. Secondly, Congress has given the Department of Defense power to waive restrictions case by case, but the executive has not used that power. Furthermore, a former detainee’s lawyer, David Frakt, notes in the online journal Jurist that the National Defense Authorization Act requires a court order before an inmate can be transferred, but that the current habeas corpus review is on the legality of detention at the time of capture and not on continued detention. This means that even if the existing review team approves release, the Justice Department has to oppose habeas corpus petitions. The problem is that successive U.S. administrations have been unable to admit that the great bulk of inmates have been wrongly detained, and that most if not all have been tortured. The courts would almost certainly dismiss charges against them on those grounds. Mr. Obama says detention without trial is “about who we are as a people,” but sadly he seems as incapable as his predecessor George W. Bush of accepting the verdicts of independent courts, fair trials, and the rule of law.

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Printable version | Oct 19, 2021 6:46:29 AM | https://www.thehindu.com/opinion/editorial/Terror-and-the-rule-of-law/article12118988.ece

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