“Today, it is not merely justice itself, but the idea of justice that is under attack.” The words are those of Arundhati Roy, the Indian author and activist, but they could also be those of anyone trying to draw up a balance sheet of the first decade of Gitmo, as the US's concentration camp at Guantánamo Bay has come to be known.
Center for Constitutional Rights (CCR) was the first legal organization to perceive the danger which the legal culture of Gitmo posed to the idea of justice and to take on cases on behalf of detainees. Gradually, other human rights organizations and, to their credit, many members of the legal establishment, joined a collective attempt to stem the tide of injustice, so that at one time CCR found itself coordinating the legal work of more than 500 pro bono “Gitmo lawyers.”
CCR's two most important victories came in two Supreme Court cases, Rasul (2004) and Boumedienne (2008). The former did away with two pernicious fictions: that, since Gitmo was located on Cuban territory, US law did not apply, and that “enemy combatants” were not entitled to habeas corpus. Congress attempted to undo Rasul by legislation, but the Supreme Court upheld it in Boumedienne, stating, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is.'”
Subsequent developments have given these victories a pyrrhic character. The Court of Appeals for the District of Columbia, where all of the Gitmo habeas cases have been brought, has refused to order the release of detainees, even those who have won their cases in the lower courts. And there are other ways in which the idea of justice has suffered in the first Gitmo decade.
Estimates of detainees who were never terrorists range from 70 to 90 percent. Not one of the more than 700 who enjoyed the hospitality of Gitmo has been able to collect compensation for being held, often in solitary confinement, and some for as long as ten years, before being released without ever being charged.
About 600 detainees have been released and sent to their home countries or other countries willing to accept them, partly as a result of CCR attorneys scouring the world for such countries. But there remains a hard core of several dozen, who have either been declared not to be security risk, but have no place to go, or are being called security risks, who cannot be tried for one or another reason and are therefore facing indefinite detention. The National Defense Authorization Act for fiscal year 2012 includes a provision allowing indefinite detention without trial for non-US citizens.
Another troubling development is Congress' 2009 mandate that relegates Gitmo detainees to a new, untested system of military commissions despite the fact that, since 9/11, 150 terrorism defendants have been successfully convicted in civilian courts.
Vice President Cheney's dictum that, in times of emergency, governments may have to go to “the dark side” hangs over this recent history. Arundhati Roy would say that once you admit that justice can have a dark side, you might as well give up on the idea of justice.