Even though I was always skeptical of holding prisoners at Guantanamo Bay, I thought the Bush administration deserved the benefit of my doubt — given the circumstances of their capture, the trove of intelligence they could yield and the nature of the threat they posed. But, since the first detainees began arriving in early 2002, each of these rationales has crumbled. This is not a new argument, but now is the right time to make it: President Bush should close Guantanamo.
Early on, the most appealing argument was practical. The detainees, in many cases fresh off the Afghan battlefield, had special knowledge about America’s new enemy. They knew what spies call “sources and methods” about al-Qaida, the Taliban, and jihadist networks generally. And, even more valuably, they might have known about other plots to follow up on the catastrophic success of Sept. 11.
The administration has made a mockery of this defense by holding them incommunicado and without due process for four and a half years. Any intelligence value the prisoners there once possessed has long since been bilked, analyzed and studied. In this regard, the detainees are of no immediate use to our defense and so there is no reason not to incarcerate them by legal means.
As the case for Guantanamo Bay has deflated, the case against it has swelled. Governments must always weigh costs and benefits. In this sense, shuttering Guantanamo is a no-brainer.
It has done immeasurable harm to America’s standing around the world — far outpacing any salutary effect of ongoing interrogations. The riots, the hunger strikes, the testimony of released detainees and the suicides there have captured the world’s attention. (The suicides were handled abominably. It is, of course, possible that the three prisoners who hanged themselves did so as an act of subversion, but the simplest explanation is also likeliest: Faced with no habeas corpus, no trial, no appeal and no hope of parole, they succumbed to desperation. Do people end their own lives for PR?)
And this isn’t just bad because anti-Americanism will spread. In a larger, more substantial way, it will hurt oppressed citizens of despotic nations, because we will be unable to push their despots to reform. Guantanamo stands for the abolition of due process, the subversion of law to politics, and torture. This and future administrations will look hypocritical when they try to pressure truly evil regimes like Saudi Arabia’s, Cambodia’s or Cuba’s to grant their citizens rights that we have not granted our own.
Legally, Guantanamo has always been on shaky ground. With the Supreme Court’s ruling last week in Hamdan v. Rumsfeld that secret tribunals violate military law and the Geneva Conventions, the Bush administration tallied its fourth failure.
First, there was Hamdi v. Rumsfeld, in which the court ruled detainees may challenge their detentions.
Next was Rumsfeld v. Padilla, in which the administration groaned that sensitive information exempted it from having to bring a criminal case; judges who defended the administration were humiliated when, after a procedural setback, the government then brought the case in criminal court after all.
Third, in Rasul v. Bush, the court ruled that the judiciary had jurisdiction in Guantanamo Bay and that prisoners could challenge their detentions.
Bush should take a hint. As long as he tries to circumvent Congress and invent law on the fly (which his administration says is acceptable in wartime), he will not win judicial blessings.
It’s true that global terrorism is a new kind of threat to America. But the Founding Fathers (and past legislators) failed to envision many challenges that this country has surmounted handily when they arose. That, after all, is what lawmakers are for.
Adam B. Kushner is assistant managing editor of the New Republic.
