Bringing Guantanamo home.

The law, lawyers, and the court.
Oct. 11 2008 7:32 AM

Bringing Guantanamo Home

The lawlessness abroad was never very far from home.

Gitmo. Click image to expand.
Guantanamo Bay detention camp

What happens at Gitmo stays at Gitmo. That was always the hope. When the Bush administration fenced off a dusty little patch of lawlessness in Cuba, the idea was that breaking the law abroad would somehow preclude us from breaking it at home. But last week revealed, yet again, that the worst of Guantanamo was always destined to spill over into the United States. Gitmo's lawlessness is now our own.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

The prison camp was created to construct a "legal black hole," a place where U.S. and international human rights law would go to die. The case of 17 Uighurs (pronounced WEE-gurs)—Chinese Muslims from western China's Xinjiang region—is one of the blackest chapters of the story. The Uighurs fled Chinese persecution (including forced abortion and banishment) and settled in Afghanistan, then moved on to Pakistan in 2001 to escape bombing raids. There they were turned over by local villagers to American authorities for bounty. They were transferred to Guantanamo more than six years ago but cleared for release in 2004. The U.S. government credibly fears they will be tortured if returned to China, and since no other country will take them, they have remained for all this time at Gitmo. Indeed, reports have it that some still remain in solitary confinement there.

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In September, an appeals court found that one of the Uighurs, Huzaifa Parhat, had been labeled an "enemy combatant" and was subject to indefinite detention based on "bare assertions." The Bush administration has now conceded that none of the Uighurs are enemy combatants. Early last week, a federal judge in Washington ordered, for the first time since the start of the "war on terror," that all 17 Uighurs be freed immediately into the care of American supporters. When Bush administration officials protested that the detainees should not be set loose on American soil, Judge Ricardo Urbina excoriated them for the fact that they had grabbed the Uighurs; failed to charge them; presented no reliable evidence against them; and, to add insult to injury, said Urbina, "the Government has stymied its own efforts to resettle the Petitioners by insisting, until recently, that they were enemy combatants." These Uighurs didn't just stream into Guantanamo Bay off a Carnival Cruise. There were brought there in error, held in error, and now, to remedy that error, they will stay there even longer. As Justice Anthony Kennedy wrote in a landmark Supreme Court decision about the rights of detainees this past summer, "the costs of delay can no longer be borne by those who are held in custody."

Except, evidently, they will be. The Justice Department managed to halt the ruling, repeating discredited claims that the Uighurs associated with terrorists and squawking about the perils of bringing Guantanamo home to Washington. But in truth, Guantanamo has been in Washington for some time. Newly released military documents prove that two American citizens held for years as "enemy combatants" at Navy brigs in Virginia and South Carolina had been interrogated and incarcerated according to the Guantanamo rules, not U.S. law. According to e-mails that surfaced last week, Yaser Esam Hamdi and Jose Padilla were interrogated by the CIA and Defense Intelligence Agency for months and years in the early part of the war on terror and deprived of light, correspondence, and human contact as their nervous interrogators worried for their sanity.

As has so often been the case when illegal conduct was authorized at Guantanamo, it was military officials who pushed back. Career military personnel were the first to cry foul at prisoner abuse and biased prosecutions at the base. And last week's documents indicate they were openly dubious about what one described as "the 'lash-up' between GTMO and Charleston" when it came to American citizens detained in the United States. Jonathan Hafetz of the ACLU's National Security Project explains that while we may only now be officially discovering that interrogation policy had spread from Guantanamo to the United States, the wall between what was constitutional here and there was never insurmountable: "For years the administration defended its detention and treatment of prisoners at Guantanamo by asserting that the Constitution did not apply because it was outside the United States. But the documents show the administration was meanwhile secretly trying to create a lawless enclave within the country where the Constitution clearly applied."

Both presidential candidates have called for the closure of Guantanamo, and when that happens, the remaining prisoners will likely be brought to this country for prosecution, detention, or deportation. Either way, in the next few years, Guantanamo will be coming home. And once these prisoners go on trial here, we will have to stop thinking of them as "them." It will be harder for the media and for the rest of us to tune out nameless men behind barbed wire when they become real people with stories and families and names. As was inevitable from the get-go, what happened in secret for six years at Guantanamo Bay will come to redefine America in some ways. And that's why it's a fitting coda for the whole Gitmo fiasco that former "enemy combatants" who had no connection to terror or terrorism may soon take up residence in our own backyards.

A version of this column appears in this week's Newsweek.