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The souls left in Guantanamo Bay won't just disappear

Few things could more appropriately commemorate Thursday's 16th anniversary of the opening of the...

Posted: Jan 11, 2018 7:48 PM
Updated: Jan 11, 2018 7:48 PM

Few things could more appropriately commemorate Thursday's 16th anniversary of the opening of the Guantanamo Bay detention facility than a new lawsuit filed by 11 of the 41 detainees still in US custody there.

Thursday's filing argues that, even if these men were once properly subject to military detention as part of the armed conflict between the United States and al Qaeda, neither US nor international law permits perpetual detention -- the fate to which it now appears these men are inexorably (and unlawfully) headed.

As the attorneys responsible for this suit know all too well, these claims face an uphill battle in court. Although the Supreme Court ruled in 2008 that noncitizens held at Guantanamo have a constitutional right to challenge the legality of their detention in court, the lower federal courts over the ensuing decade have broadly sustained the government's detention authority.

Just as importantly, lower courts have also endorsed the view that, because we are at war with al Qaeda, anyone who was ever even partially affiliated with that group (or any of its affiliates) is subject to military detention until the "end of hostilities," whenever those may be.

In 2004, the Supreme Court suggested that the end-of-hostilities model for detention "might unravel" in a war that truly went on forever. But the lower courts have repeatedly held in recent years that we aren't there yet, even though, 16 years in, these hostilities may not end in our (or, more importantly, the detainees') lifetimes.

There's an important difference, though, between what the law allows and what makes good sense as a policy matter. The Bush and Obama administrations each understood this distinction, which is why more than 500 men were released or transferred from Guantanamo during President George W. Bush's tenure (none pursuant to a court order), and another 200 during President Barack Obama's (roughly 30 of whom were released after obtaining favorable judicial rulings).

Indeed, Obama may have failed in his campaign pledge to "close" Guantanamo, but one of his quiet successes was the institution of a sophisticated periodic review system, which did not just ask whether detainees were legally subject to continuing military detention, but whether there was sufficient evidence that each detainee would pose a continuing threat to the United States if released.

If the government's own review board concluded the answer was no, that detainee would then be released either to his home country or a third-party country willing to take him. And even among the detainees still at Guantanamo more than a decade after their capture -- the worst of the worst, as they were often caricatured -- the review boards have ruled for more detainees than they have ruled against. By the end of the Obama administration, the government had succeeded in transferring all but five of the detainees cleared by these periodic review boards.

In contrast to the nuanced approach of the last two administrations, President Donald Trump's apparent plan to date has been to do ... nothing. No new detainees have been sent to Guantanamo (despite repeated pledges by Trump on the campaign trail that he would reinvigorate the detention program), and no detainees have been released, either. By all accounts, Guantanamo has become, to the Trump administration, a virtual irrelevancy -- useful for rhetorical flourishes whenever new terrorism suspects are arrested, but not worth any actual policy attention. Meanwhile, according to the Center for Constitutional Rights, citing Defense Department sources, it costs about $445 million a year to keep the facility open, which works out to around $11 million per detainee.

With its irrelevancy to the government, Guantanamo has also largely disappeared from the attention of the public and press. There's only one major media outlet -- The Miami Herald -- that still regularly sends a reporter to the military base. There's little discussion in the media of some of the recent controversies there, including the government's plan to destroy art created by the detainees; the concerns over government spying on conversations between some of the detainees and their attorneys; and, most recently, an apparent renewal of controversial genital searches of the detainees that provoked controversy (and major litigation) five years ago -- when the detention facility was under the command of then-Gen. John Kelly (the current White House chief of staff).

Reasonable minds will continue to disagree about the virtues and vices of long-term military detention as a staple of contemporary US military policy. Reasonable minds will also surely disagree about what the government should do with the remaining detainees -- including whether the periodic review process should be reinvigorated, whether they should be moved into the United States and so on. But the critical point is that these are debates we ought to be having -- and policy solutions we ought to be discussing. As we enter the 17th year of military detention at Guantanamo, we can't just close our eyes and hope it -- and the 41 men still held there -- simply go away.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 1524527

Reported Deaths: 20751
CountyCasesDeaths
Marion2077652558
Lake1010411517
Allen946081024
Hamilton73638551
St. Joseph65362761
Elkhart50026632
Vanderburgh48959530
Tippecanoe44411338
Johnson38772527
Hendricks36850462
Porter34709476
Madison29301547
Clark26328328
Vigo25941346
LaPorte23600313
Monroe23478249
Howard22382381
Delaware21877370
Hancock18857220
Bartholomew18433216
Kosciusko18124203
Warrick17207215
Wayne16474303
Floyd16129257
Grant15566299
Morgan14615232
Boone13622138
Noble11983142
Shelby11877152
Dearborn11825113
Henry11771201
Marshall11444171
Dubois11418152
Jackson10772104
Cass10380143
Lawrence10308221
DeKalb10292132
Huntington10277140
Gibson9749126
Montgomery9377144
Knox9162125
Harrison9157117
Whitley886771
Steuben8739105
Jasper8325116
Putnam8306100
Clinton827596
Miami8249135
Jefferson8030127
Wabash7914139
Ripley7278116
Adams6713103
Daviess6661130
Scott663586
White624484
Greene6159112
Clay615275
Decatur6062120
Wells6001120
Jennings600081
Fayette5886122
Posey561648
LaGrange535797
Randolph5171129
Washington511470
Owen5068100
Fountain482580
Spencer457456
Sullivan449866
Starke443986
Fulton440393
Orange435083
Jay419964
Rush418839
Perry397555
Carroll384549
Franklin382850
Vermillion363562
Pike327845
Parke327338
Tipton320675
Blackford275955
Pulaski275375
Newton235461
Brown233556
Benton221521
Crawford220132
Switzerland201414
Martin191822
Warren179522
Union172619
Ohio125216
Unassigned0759

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 2496243

Reported Deaths: 31987
CountyCasesDeaths
Franklin2696772100
Cuyahoga2600613087
Hamilton1742641756
Montgomery1162791651
Summit1084961418
Lucas929121193
Butler82981963
Stark766321431
Lorain63976809
Warren52895489
Mahoning50955930
Lake47462611
Clermont46371452
Delaware40674220
Trumbull39527790
Licking38492416
Medina38487427
Fairfield35469349
Greene33906435
Portage32283366
Clark31960453
Richland29400444
Wood29143301
Allen25702403
Miami23931408
Muskingum23316255
Columbiana22903409
Wayne21965365
Tuscarawas19512428
Erie18531224
Ashtabula18489362
Marion18456235
Scioto17888214
Ross17287260
Pickaway16251181
Hancock16004232
Geauga15456229
Lawrence14746186
Belmont14033248
Union1403384
Huron13838184
Jefferson13519261
Sandusky13180200
Athens12624107
Knox12037201
Seneca11934204
Darke11316202
Ashland11157184
Washington11009172
Auglaize10785147
Crawford10333178
Shelby10308160
Brown9972145
Fulton9661154
Highland9632151
Guernsey9612122
Defiance9486137
Logan9403147
Clinton9299132
Mercer9015112
Madison8971111
Preble8428170
Williams8263138
Putnam8024136
Champaign7974113
Ottawa7909123
Jackson7763121
Perry7415102
Coshocton7345136
Morrow723984
Fayette703292
Pike658489
Hardin6532133
Gallia634391
Adams6159127
Van Wert6025121
Henry598196
Hocking5835105
Wyandot498894
Carroll4961101
Holmes4857167
Paulding421665
Meigs397774
Monroe313868
Harrison296362
Noble295652
Morgan289448
Vinton254646
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