Shutting down the detention camp at Guantanamo should have been, in the lingo of President Obama’s favourite sport, a “slam dunk.” President Bush tried to do it. In the presidential campaign, John McCain was as much in favour of it as Mr. Obama. It was one of the first announcements made by President Obama after taking office, and received as proof that he meant what he said while on the stump.
The detention camp, located on a U.S. naval base on Cuba’s southern coast (itself a remnant of the Spanish-American War), is a symbol of everything that went wrong in the U.S. “War on Terror.” Out of nearly 800 detainees, only three were convicted by the Military Commissions. Five hundred and twenty five had to be released without charges by the Bush administration. From the arrest, kidnapping and forcible removal to it of many suspected terrorists (most of whom turned out to be innocent civilians, merely guilty of having found themselves in the wrong place at the wrong time) to the torture practices applied on them, it became, with Abu Ghraib, “an American Gulag,” an embarrassment to the conscience of a nation proud of its civil liberties tradition.
Softening its image through the application of “kinder and gentler” enhanced interrogation techniques was no longer an option. Gitmo had to go.
Yet, and here is the paradox, a few months later even Democrats in Congress opposed a $80-million item to close down the camp on a military spending bill sent to Capitol Hill by the White House. The Senate vote on the bill was 90 to 6 against it.
What happened? What explains this turnaround on an issue on which there was such a seeming consensus only a few months ago?
The short answer is that the White House did not do its homework and did not come up with a detailed plan as to where the 240 detainees would be transferred to. Yet, given the political football this has turned into, this bureaucratic explanation is unsatisfactory.
Detention camps known for severe human rights violations are not new, nor exclusive to the United States. In the 20th century, there was a long list of such instances, brought into being by some rather unsavoury regimes. They, and many other manifestations of such abuses, have given rise to a whole field of specialized jurisprudence and legal practice, known as transitional justice.
The Bush administration was not a dictatorship, and its human rights abuses were directed not against its own citizens, but against foreigners suspected of terrorist activities or intentions. However, its official sanctioning of torture and the extensive application of it, in a country whose history has such abhorrence of these practices that more than two centuries ago it enacted legislation, the Alien Tort Act, that made it possible for U.S. courts to sue foreigners who committed torture anywhere, considered a violation of “the law of nations” (making the torturer, like the pirate, hostis humani generis, an enemy of all men), meant a qualitative change from “normal” politics.
The shift from the Bush to Obama administration is analogous in some ways to the transitional politics we have witnessed in so many parts of the world over the past four decades. 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; there is no standard recipe. What is evident is that, unless it is dealt with somehow, this “evil past” will not go away or disappear on its own. 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 Mr. Obama was elected with such an overwhelming mandate last November was Abu Ghraib and Guantanamo. What transpired there repelled vast sectors of the U.S. public opinion. After he took office, more evidence has come out about these practices.
Some have advocated prosecution of those responsible for ordering them, perhaps through the appointment of a special prosecutor. Senator Patrick Leahy (Democrat-Vermont), chair of the U.S. Senate Judiciary Committee, has proposed the creation of a Truth Commission. Abroad, Spanish Judge Baltasar Garzón is taking the first steps towards an investigation of those responsible for torture in Guantanamo: Spanish law allows for “universal jurisdiction,” if Spanish citizens and or residents are involved, very much the case in Guantanamo.
Yet, President Obama has rejected all of these alternatives, arguing for the need “to look ahead.” With the ambitious programme of reforms he has put on the table, he does not want to be sidetracked into “relitigating the past,” as he likes to say.
However, the Guantanamo bill fiasco shows that sweeping this evil past under the carpet and pretend it never happened has not only not worked, but has backfired.
If torture, and the legal memos that rationalised it and provided cover for the Army and CIA interrogators that applied it, are “politics as usual,” and the only valid question remaining is the utilitarian one as to whether they yielded “actionable intelligence” (which is what the former Vice-President Dick Cheney’speeches and interviews have managed to do), we are back to 9/11 and a previous, perhaps more innocent period. 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 demagogy and the catering to the baser instincts of the citizenry that rises to the fore on such occasions. Senate Majority leader Harry Reid talks about a mysterious “release” of detainees (which would be unacceptable to him), as if they could not be transported directly from one penal facility to another. The U.S. has the largest prison system in the world, with over two million inmates (including several convicted international terrorists), with supermax penitentiaries from which no one has ever escaped. Yet, to hear some Western Senators and Representatives, much of the U.S. population west of the Rockies would be at risk if even a single Guantanamo detainee were to be housed in a Western prison. As one commentator put it, suddenly the cowboys have turned into sissies.
One reason President Obama has been so cautious on the torture issue is that, in the spirit of bipartisanship, he wants to avoid antagonising the Republican Party. One would think that those who were in the forefront of this “dark side” of U.S. policy, either at the highest levels or as the lawyers who wrote the memos of the Office of Legal Counsel (and therefore would have the most to lose from a different approach), would at least be circumspect on the Guantanamo issue, if not grateful to President Obama for his magnanimity.
Yet, that is not the case. Mr. 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 weighed in, arguing against closing the detention camp. Since they have already gotten away with torture without as much as a slap on their wrists, they see no reason not to come forward. They thus continue to battle for what they consider the just cause of enhanced interrogation techniques, illegal abductions, extraordinary renditions, military commission trials, and the permanent detention of civilians who cannot be brought to trial for various reasons.
Transitional justice is not only about the latter. It is also about truth, and about symbols. There is a reason why countries which 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 U.S. 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 (“the shining city on a hill”), 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. He serves currently as Vice-President of the International Political Science Association (IPSA).