GitMo Update: Pontius Pilate

NB: Whenever I write something on Gitmo or include a link in a post, please note that this is part of the course materials. Admittedly, we aren't going to talk about these things until the end of the semester, so you need not read them immediately. Nevertheless, do not ignore them.

All,

On Thursday the House passed the Homeland Security Appropriations Bill, which contained language regarding Mr Obama's pledge to close the prison at Guantanamo Bay and to deal with the prisoners there. This comes after weeks of opposition from the GOP (all but one Republican voted against the bill) and many Democrats, as they feared that detainees would be brought to US soil to face trial, that they would be moved to US maximum security prisons, or that they might even be released in the United States. I'm going to skip the details as to why these fears are variously unfounded, ridiculous, or patently unconstitutional, and reproduce below the language within the bill that deals with detainees. I'd like you to pay attention to the wording, and to think about the implications which it enshrines into law.

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Guantanamo Bay Detention Facility: 1) Prohibits current detainees from being released into the continental United States, Alaska, Hawaii, DC, or any U.S. territory. 2) Prohibits current detainees from being transferred to the continental United States, Alaska, Hawaii, DC, or any U.S. territory, except to be prosecuted and only after Congress receives a plan detailing: risks involved and a plan for mitigating such risk; cost of the transfer; legal rationale and court demands; and a copy of the notification provided to the Governor of the receiving state 14 days before a transfer with a certification by the Attorney General that the individual poses little or no security risk. 3) Current detainees cannot be transferred or released to another country (including freely associated states) unless the President submits to Congress 15 days prior to such transfer: the name of the individual and the country the individual will be transferred to; an assessment of risks posed and actions taken to mitigate such risks; and the terms of the transfer agreement with the other country, including any financial assistance. 4) Requires the President to submit a report to Congress describing the disposition of each current detainee before the facility can be closed. 5) Bars the use of funds to provide any immigration benefits to GTMO detainees other than to allow them to be brought to the U.S. for prosecution. 6) Mandates the inclusion of all GTMO detainees on the TSA No Fly List.

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Think about this for a moment. When the United States wrongfully accuses someone of a crime, arrests them, detains them, imprisons them, etc., the United States has a moral and legal responsibility to those wrongfully treated both to repair the damage done to their lives and to clear their names of the taint which has been laid unjustly upon them (to give a couple of examples of wrongful imprisonment suits in the last few months: a man in SF just won $7.5 million, one in Texas $5 million, one in Chicago $21 million). In this case, Congress has agreed to allow these folks to be tried, but only on the stipulation that they may not be released into the US, they may not fly in or over US airspace (which all but bars them from entering the US), and not a single US dollar can be used to fly them away from the US or in any other way related to them. In other words, if found innocent, they will either be flown in a military plane to some (as yet undefined) location, dropped off on non-US soil, and left to their own devices. (Incidentally, this has been going on, quietly, for years. Of the total number of Gitmo detainees, somewhere over 750 according to the DoD, only 250 remain. Some of those recognized to be not guilty have been flown out of the camp literally in the middle of the night, and dropped off across the world from where they were picked up without any money, contacts, or idea where they are.) Or some charitable country/organization/individual will have to pay for them to be flown to some specific place. (Some who the DoD admits are innocent, e.g., cases of mistaken identity, are still at Gitmo because no country has agreed to take them.)

In other words, the bill says: If found innocent, the US completely washes its hands of the last X number of days/weeks/years they have spent in prison, of any responsibility it has to rectify the lost time, to do anything to repair their lives, etc. If found guilty of some crime, the US has so little faith in its own correctional facilities (the only ones being considered are maximum security, reserved for the nation's worst) that it refuses to house them anywhere in the US.

Let's just take one simple aspect of this and think about it for a moment: imagine the government imprisoned you for no reason, held you for years, then found you innocent via a trial, then flies you not back to your home but to Algeria, then tells you that you still can't ever fly on an American plane because... because why? Because your proven innocence is a potential threat to US national security? Or because Congress is afraid of its own constituents thinking that they are "soft on terror"--even though you have been exonerated of any relationship with terror? Or because Congress is afraid that after spending several years in a legal limbo without rights/trial/evidence/charges, without access to family/lawyers/outside world, etc., etc., that--although you didn't want to kill Americans before--you might want to now?


(NB: This political cartoon has the audacity to parody MLK Jr's "Dream" speech to imply that everyone at Gitmo is guilty without trial, and that Obama is knowingly releasing terrorists. Stunning.)

-W.