On January 11, 2002, the first prisoners arrived at Guantánamo Bay detention camp.
To mark the anniversary, Reprieve’s GTMO attorney Mark Maher wrote this comment article.
There’s a gift shop at the Guantánamo Bay naval base. On a recent visit to the notorious prison there, I noticed “Real Housewives of Guantánamo Bay” tote bags and t-shirts on sale there.
Each of my clients is an actual human, and many are husbands and fathers. I couldn’t help but think of Ahmed Rabbani’s wife, who was pregnant with their son Jawad when Ahmed was abducted by Pakistani security services and sold to the U.S. 19 years ago. She is real.
Asadullah Haroon Gul’s wife has raised their daughter Maryam without him in Afghanistan for the last 14 years. She is real, too.
The first year of the Biden administration has been bittersweet for me, as a Guantánamo attorney. A number of my clients have been cleared for release, and we have seen long-overdue, heartening court victories. In July, Abdullatif Nasser, one of the kindest and gentlest men I know, was transferred home to his family in Morocco.
Each of these victories is tinged with sadness and uncertainty. Abdullatif was cleared for release in late 2015, but his transfer wasn’t completed by the last days of the Obama administration and was blocked by President Trump. Now, we have no idea when our “cleared” clients will be ultimately released.
As we recognize the 20th anniversary of the first prisoners arriving at Guantánamo Bay, on Jan. 11, I have been thinking about everything that has been lost — not only by the fathers and brothers and sons I have come to know in this awful prison, but by America.
Of the 780 men who have been imprisoned at Guantánamo, only a handful were ever charged with a crime. This fact, dulled by repetition, should still astonish and appall us, particularly those of us who care about the American court system.
In a famous footnote from the case United States vs. Carolene Products Co., Justice Harlan Stone wrote that there are certain categories of laws that may warrant more searching judicial review than usual. Among those are cases dealing with “discrete and insular minorities.” That is, courts should seek to protect the rights of those people who may be ignored by political processes.
My clients don’t get a vote. They don’t get to field candidates or hire lobbyists. They are exactly the sort of people courts should be stepping in to protect, but over the last two decades, courts have repeatedly expanded executive power.
Guantánamo’s legacy is still being determined, but the longer it remains open and the longer the executive defends its ability to hold people forever without charge or trial, the more the idea of indefinite detention is normalized. We saw this under the Trump administration, when the Supreme Court ruled in Preap vs. Nielsen that ICE could pick up non-citizens with the most minor of criminal records, detain them without bail and push them into removal proceedings.
Our Constitution ensures that there are protections for those sitting outside our political institutions. As each successive administration, whether Republican or Democrat, defends the executive’s authority to indefinitely detain people without charge or trial, I fear that promise is being permanently betrayed. My fervent hope is that our elected officials will defend the Constitution and recognize that government overreach that restricts anyone’s freedom is bad regardless of their race, color or creed.
Each of the detainees I represent has found a way to survive, whether through art or religion or peaceful protest. It is a testament to the human spirit that they can still envision a life after Guantánamo, despite the long effort to break them. But they will never get back the years that have been stolen from them — the experiences and relationships, the love and joy and struggle of an ordinary life.
Can we, as a country, every recover what we have lost? It is no longer controversial to say that Guantánamo should be closed, and it may well be. But the jurisprudence that has kept the prison open for two decades will still be there, and there will be little standing in the way of some future president who determines it is necessary to indefinitely detain people. Will our Constitution really offer no protection to those very real husbands, brothers, daughters and wives whose lives are irrevocably altered?
This article was first published in the New York Daily News, but the newspaper’s website is blocked in Europe, so the full article is posted here.