Considering indefinite detention at Guantánamo Bay

This week in North Philly Notes, Rajini Srikanth, author of Constructing the Enemy, wonders: What if each of us could imagine being a detainee at Guantánamo Bay?

In June 2004, a Supreme Court ruling gave lawyers access for the first time to the detainees at Guantánamo Bay since their capture in 2002.  The over 700 Muslim men being held there, who had until this ruling been denied the right to any legal challenge of their detention, were thrust into the consciousness of our country as possessing voice, as being human. This outcome was the result of a case filed by the Center for Constitutional Rights (CCR), which at the time of the original filing in 2002 had received hate mail and death threats for upholding one of the most fundamental rights of Western law and of the U.S. Constitution – the right of every individual to challenge one’s detention in court and to ask why one is being held.  The Supreme Court ruled (6 to 3) that Guantánamo Bay was for all practical purposes under the control of the United States (though owned technically by Cuba) and so the detainees being held there had habeas corpus rights and could challenge their detention in court.  This reaffirmation of a basic and fundamental legal right prompted hundreds of lawyers, many from the private bar, to come forward to offer their services pro bono to represent the detainees against what they considered to be the Bush administration’s egregious violation of the U.S. Constitution and disregard for the rule of law.  The Center for Constitutional Rights in New York became the nerve center for these lawyers, and the long and arduous process of detainee representation began.  Due almost entirely to the efforts of the lawyers, the detainee population, at its height over 700 men, has been reduced to 166 (at last count).

Among the remaining detainees, there are more than 50% who have been cleared for release because they are deemed to pose no threat to the United States, but these men are still confined, caught in a bizarre and nightmarish situation in which their life is akin to death – forgotten by the citizens of the very country that holds them in confinement and condemned by the elected representatives of this country not to be released.  We use their incarceration to feed our need for a false sense of security; their indefinite detention (since 2002) stands as evidence of our ability to control what we see as a world that is unpredictable and unknowable.  It is no wonder that 103 detainees are currently on hunger strike; 41 of them are being force-fed. Who could live day after day knowing that one is confined without cause, knowing that there is no process by which one can expect to be released, because the Congress and the people of the country that holds them have abdicated their moral responsibility and tossed aside their ability to think rationally?

Three years ago, as part of my research for Constructing the Enemy, I interviewed several lawyers who were working on behalf of various detainees at Guantánamo Bay. One of them remarked that the lawyers’ intervention was crucial, because the American people seemed not to care: “we are holding the legal line until the politics kick in,” he said. But the politics have still not kicked in. In fact, if anything, despite President Obama’s declarations that he wishes to close the Guantánamo Bay facility because it stands as evidence of our egregious disregard for basic human rights and seriously besmirches our reputation as a nation based on the rule of law, we the people and our Congress refuse to acknowledge our complicity in the cruel and inhumane confinement of people who are no more guilty than you or I, even by the military’s own reckoning.  Law professor Mark Denbeaux and journalist and film director Andy Worthington have carefully and meticulously documented that the detainees were picked up under the most problematic circumstances – leaflets were dropped from the sky in Afghanistan and Pakistan during the early months of 2002 with promises of large amounts of money if people turned in “the foreigners” among them. Afghanis and Pakistanis responded to this allure of quick money, and hundreds of innocent and unsuspecting travelers from Yemen, Saudi Arabia, Iran, and China were handed over to the U. S. military as Al-Qaeda affiliates. One lawyer remarked that we filled Guantánamo Bay through good old-fashioned capitalist rhetoric.

Northeastern University law professor Mike Meltsner’s play, In Our Name: A Play of the Torture Years, includes a scene that reveals the hollowness of our democratic fabric and the entire absence of integrity and rational thought.  A reporter asks a citizen if he is worried that water boarding is torture.  The citizen responds, “Not if the guy is a terrorist.” The reporter counters, “But how do we know who is a terrorist?” The citizen answers, “He wouldn’t be water boarded if he wasn’t” (71-72).  My students almost always gasp at the circularity of the argument; how can a person with even a modicum of analytical sense come to such a conclusion, they wonder.  And yet, through our virtual silence about the unlawful indefinite detentions at Guantánamo Bay, we are complicit in assuming that simply because someone is a detainee there, he must be a terrorist.

It would appear that Attorney Marc Falkoff, who collected and published poems written by the detainees (Poems from Guantánamo : The Detainees Speak) in an effort to stimulate empathy for them among the public, was unduly optimistic.  The truth is that most Americans don’t really care about the detainees, and many most likely believe that they are the unfortunate but necessary “collateral damage” of the times in which we live.   But we are all responsible for these 166 men. Our fear and paranoia put them there, and our fear and paranoia keep them there. Some of them likely pose a threat to the nation, but most of them do not: this latter group has, in fact, been cleared for release.  So why are they there? It’s easy to blame the Congress for stoking the public’s fears that should these detainees be released to their home countries or elsewhere, they will begin a campaign of terror against the United States.  But it’s not just Congress that is to blame. We are deeply at fault as a people.  We are unwilling or unable to imagine these men as individuals like us.  But what if we were the ones at Guantánamo Bay? What if we had simply been in the wrong place and the wrong time? What if we were never going to see our families? What if all we had before us was the prospect of years and years of such an existence?

The lawyers I interviewed were not at the outset motivated by empathy for the detainees. Their initial zeal came from their desire to uphold the U.S. Constitution or perhaps to take on the biggest legal challenge of their careers. But each of these lawyers quickly came to realize that the detainees are sons and fathers and brothers with desires and aspirations identical to ours; they have developed deep admiration for the detainees’ fortitude.  The lawyers speak of never giving up in the fight to seek their clients’ release.  Some have testified before Congress, some have written newspaper editorials.  The lawyers have met the detainees personally, an opportunity that the rest of us will not have.  But are we so emotionally impoverished or so imaginatively constrained that we cannot envision the absolute despair and unending bleakness of unjust and indefinite detention?  What is the point of being a member of a democracy if we do not exercise our capacity for independent thought?  At the very least, we should write our congressmen and congresswomen and ask them to close down Guantánamo Bay, to release those who have been cleared for release, and to try in our courts those who might pose a threat. It is our minimum obligation as citizens of a democracy.