Shutting down the detention camp at Guantanamo should have been, in the lingo of President Barrack Obama's favourite sport, a "slam dunk". President George W. Bush tried to do it. In the presidential campaign, John McCain was as much in favour of it as Obama. It was one of the first announcements made by President Obama after taking office.
The detention camp is a symbol of everything that went wrong in the US 'War on Terror'. Of nearly 800 detainees, only three were convicted by the military commissions. Five hundred and twenty-five were ultimately released without charges by the Bush administration. From the arrest, kidnapping and forcible removal to it from many suspects, to the torture practices applied to them, it became, with Abu Ghraib, an embarrassment.
Yet, a few months later even Democrats in the Congress have opposed a US$80-million item for closing down the camp on a military spending bill sent to Capitol Hill by the White House. The Senate vote on the item was 90 to six against it.
Detention camps known for severe human rights violations are not new, nor exclusive to the United States. In the course of the 20th century, there is a long list of such instances. They, and many other manifestations of such abuses, have given rise to a whole field of specialised jurisprudence - transitional justice.
The Bush administration was not a dictatorship, and its human rights abuses were not directed against its own citizens. Still, the shift from the Bush to the Obama administration is analogous in some ways to the transitional politics we have witnessed elsewhere. The confronting of an "evil past" and what to do about it is a critical issue for the new regime and for society at large. Different nations have dealt with it in different ways. What is evident, though, is that, unless it is dealt with somehow, this "evil past" will not go away. If the wound is not healed, it will continue to fester.
Torture, its practice, its rationalisation and legal justification, is one of the great moral issues of our time. Part of the reason President Obama was elected with such an overwhelming mandate last November, was because of Abu Ghraib and Guantanamo.
Some have advocated prosecution of those responsible. Senator Patrick Leahy, chair of the US Senate Judiciary Committee, has proposed the creation of a Truth Commission. Abroad, Spanish Judge Baltasar Garzon is taking the first steps towards an investigation of those responsible for torture in Guantanamo: Spanish law allows for "universal jurisdiction".
Yet President Obama has rejected all of these alternatives arguing for the need "to look ahead". He does not want to be side-tracked into "relitigating the past", as he likes to say. Yet, this has backfired.
If torture, the legal memos that rationalised it and provided cover for the army and CIA interrogators that applied it, is "politics as usual", and the only valid question remaining is the utilitarian one as to whether they yielded "actionable intelligence" (which is what Vice-President Cheney's speeches and interviews have managed to do), we are back to 9/11. If the moral issue of torture is sidelined in the interest of expediency, we return to the more mundane ways of doing politics.
Guantanamo's closing ceases to be a moral imperative, and becomes one of logistics. "Not in my backyard" rules the roost. Democrats will not let themselves be outmanoeuvred by Republican demagoguery and the catering to the baser instincts of citizens. Senate Majority leader Harry Reid talks about a mysterious, and unacceptable, "release" of detainees, as if they could not be transported directly from one penal facility to another. The United States has the largest prison system in the world, with over two million inmates (including several hundred convicted international terrorists), with supermax penitentiaries from which no one has ever escaped, yet that is set aside.
President Obama has been cautious on the torture issue to avoid antagonising Republicans. One would think that those who were in the forefront of this "dark side" of US policy, either at the highest levels, or as government lawyers (and therefore would have the most to lose from a different approach ) would be, if not grateful to President Obama for his magnanimity, at least circumspect on the Guantanamo issue.
Yet, that is not the case. Former vice-president, Dick Cheney, has led the attacks on the "closing Gitmo" project, doing, some say, more TV talk shows in a few weeks than he did in eight years in power. John Yoo, the main drafter of the "torture memos", has also argued against closing the detention camp. Since they have already got away with torture without as much as a slap on their wrists, they see no reason not to come forward.
Transitional justice is not only about the latter. It is also about truth, and about symbols. There is a reason why countries who make the transition from authoritarian to democratic rule engage in complex rituals that can go from successor trials to truth commissions to other types of high-level inquiries into their evil past. If any, the sanctions emerging from such exercises tend to be limited. But the cleansing they produce of the body politic is necessary for the succeeding regime to start its mandate with a clean slate. Those who ignore this deep need do so at their peril.
The United States is an exceptional nation, as are the circumstances of the change of administration from George W. Bush to Barack Hussein Obama. But the leader of the oldest democracy in the world, himself a constitutional law professor, could do worse than to look at the current choices and dilemmas he faces as he cleans up the mess he inherited, through the lenses of transitional justice rather than those of normal politics.
Jorge Heine holds the Chair in Global Governance at the Balsillie School of International Affairs and is a Distinguished Fellow at The Centre for International Governance Innovation (CIGI) in Waterloo, Ontario.