Of all the hangovers from the George W. Bush years, the thorniest may be what to do about the U.S. military prison camp at Guantanamo Bay, Cuba. There are still 171 detainees at Guantanamo and little consensus on what to do with them. Last spring, President Obama announced the resumption of military trials for some of those charged with participating in the 9/11 attacks. These trials, known as military commissions, have been stalled for years by legal challenges. Recently, the official in charge of the Guantanamo prison, Rear Adm. David Woods, issued a draft order that compounds these challenges. The order requires all correspondence between the accused and their appointed military lawyers to be reviewed by federal officials.

The proposed order is a mistake, one that threatens to jeopardize the progress made in reversing Guantanamo’s tainted legacy as a legal black hole. It likely violates the 6th Amendment’s guarantee of the right to counsel, which has long been understood to permit lawyers to communicate confidentially with their clients.

The order is not just bad law. It is also bad policy that could tarnish the most high-profile military trials held by our nation since World War II.

What legal rights the Guantanamo detainees possess is hotly contested. The Bush administration long argued that Guantanamo was Cuban, not American, territory and therefore the detainees had no constitutional rights. That view was repudiated by the U.S. Supreme Court in 2008 in Boumediene vs. Bush. In deciding that at least some constitutional rights extended to those held at Guantanamo, the court recognized the highly unusual nature of the base.

Guantanamo has been under American control since U.S. troops prevailed in the Spanish-American War of 1898. Cuba has no effective control over the base, which is governed by a lease that cannot be changed without U.S. consent and that accords the U.S. “complete jurisdiction and control.” This history led the Supreme Court to declare that whatever the legal formalities, it is an “obvious and uncontested fact” that the United States is the de facto sovereign there.

In short, Guantanamo Bay is technically Cuba. But as a practical matter, it is just as much a part of the United States as Tampa Bay.

Boumediene did not involve the 6th Amendment. And the Supreme Court has never expressly declared that the 6th Amendment applies to foreigners tried abroad. In the closest case on point — involving Nazi saboteurs captured during World War II on the beaches of Long Island and Florida and tried in the U.S. — the court held that they lacked a 6th Amendment right to trial by jury because the laws of war did not require one for unlawful combatants. But the 1942 decision pointedly said nothing about the other aspects of the amendment, including the right to counsel.

In light of these precedents, it is not at all implausible that the right to counsel extends to those at Guantanamo. The Supreme Court made it clear in Boumediene that it was deeply troubled by the idea that the federal government could evade constitutional restraints simply by moving prisons offshore. That reasoning applies no less readily to offshore trials.

Woods’ order does not simply raise legal concerns, however. By violating the sanctity of attorney-client privilege, it jeopardizes the perception of American military commissions as fair and just, a perception that is crucial if these trials are to succeed.

To see why, consider the fundamental purpose of such trials. Why not simply imprison the suspected terrorists in perpetuity without trial? The chief reason, dating to the landmark Nuremberg tribunal, is the belief that a just and fair trial of even our worst enemies is the best vindication of our nation’s values, and the best way to ensure that cycles of revenge are tamped down, individuals are held accountable and the truth emerges.

War-crimes trials have long been tarred by cries of “victor’s justice.” It is only through scrupulous adherence to fair, neutral and time-honored procedures that we can forcefully refute such criticism.

To some critics, of course, no amount of due process can save the military commissions. They see the results as foreordained and the legal process as so much window-dressing. But the commissions, though rarely employed in our history, grow out of a long and honorable tradition of military justice. They can and ought to be fair proceedings. If they are perceived as unfair, they will jeopardize the entire point of war-crimes trials — which is, in the famous words of Justice Robert Jackson, the American prosecutor at Nuremberg, to “stay the hand of vengeance” and submit “captive enemies to the judgment of the law.”

That is why the defense lawyers appointed to represent the detainees — American service members who proudly wear our uniform — have vigorously protested the effort to intrude on attorney-client privilege. They recognize an important truth. The U.S., and our long struggle against terrorist violence, will be the loser if the deck is stacked against the Guantanamo defendants.

This week marks the 10th anniversary of the opening of the U.S. detention facility at Guantanamo Bay, Cuba, and the hand-wringing is in high gear. There have been op-eds by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site and tear-stained statements by human rights groups.

In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.

Make no mistake: There will be another 10 years of Guantanamo. (Even if Guantanamo itself miraculously closes, we’ll have to build it again somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against non-state actors, our forces are likely to capture more of such people, and they will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

America needs principles for Guantanamo’s next decade — principles that might form the basis for a national policy that commands support from a wide swath of our political system. Here are three suggestions toward that end.

First, the president must face the fact that the effort to close Guantanamo has failed. It is clear that no conceivably electable presidential administration — including the Obama administration — is going to abandon the military detention of terror suspects. It is also clear that Congress has an irrationally strong preference for handling this detention at Guantanamo, that legislators will frustrate any efforts by the administration to create or use alternative sites, and that the executive branch will not exert the political effort necessary to stare Congress down on this point.

This is actually a rational calculation on Obama’s part. The marginal political gain he would net from closing Guantanamo and building some other site for the same purpose — a site that would quickly acquire similar infamy — just isn’t great enough to justify the intense political energy it would require to achieve Guantanamo’s closure. What’s more, much of the president’s political base — not being stupid — has figured out that closure doesn’t mean all that much if detainees are moved rather than freed. So why not stop pretending that Guantanamo’s closure is still meaningfully part of the plan?

Second, detention at Guantanamo has become rich with due process, and we should embrace this model for a wider array of long-term counterterrorism detentions. Detainees at Guantanamo have access to habeas corpus. They have access to lawyers. And those who lose their cases have a robust review process that will reexamine their cases regularly. Ironically, while Guantanamo remains controversial, U.S. detainees elsewhere in the world have much less process available to them. Instead of clamoring for a useless closure that isn’t going to happen anyway, we should think about which detainees, including those held in theater in Afghanistan and those we have sometimes held on ships, we might prefer to bring to Guantanamo and hold under its rules. These guidelines have actually served the executive branch well by creating legitimacy and judicial sign-off for detentions that had once been executive-only affairs.

Third, non-criminal detention is a fluid business that requires flexibility. Public myths aside, detention at Guantanamo has not usually meant detention forever. Opportunities to press charges against detainees will sometimes arise. Opportunities to transfer them abroad come up more often. We learn about errors, and new information has often triggered releases. Yet just as the administration has avoided acknowledging Guantanamo’s ongoing role, many in Congress from both parties have been in denial about the importance of transfers from the facility. Congress has made transfers terribly difficult and thereby all but guaranteed that the administration will not use the base for future cases. This is wrongheaded. Guantanamo is a detention facility, not a lobster trap, and a detention facility where detentions can’t end helps nobody. The ability to free detainees must be unencumbered for any detention policy to work well.

Put these three principles together and you get something — process-rich, flexible detention at Guantanamo Bay — that looks like a detention policy for the coming decade. Working toward such a policy, not endlessly picking at the scab of the past 10 years, should be the focus of today’s discussion.

Ten years after its opening, mention Guantanamo, and a thousand images emerge. Men in orange jumpsuits wearing goggles, hoods and handcuffs, hunched over in the relentless Caribbean sun; zoo-like cages, exposed to the elements, with nothing but buckets as toilets; secret areas of the prison compound where “enhanced interrogation techniques” were tested; a detainee deprived of sleep, and injected forcibly with fluids to cause swelling, until he broke; men found hanging from ropes in their cells.

What would a world without Guantanamo be like? That’s two questions, really. First, one must imagine a world in which the detention facility had never opened its doors. And, less fanciful, a world in which it closed down now. To begin, it’s a good idea to remind ourselves of what Guantanamo has been and what it means today.

From the start, the U.S. military prison at Guantanamo Bay, Cuba, was painted for the public as containing unimaginably bad inmates. White House and military officials insisted that the prisoners there were “the worst of the worst”; former Joint Chiefs of Staff chairman Richard Myers described the detainees as almost superhuman — able to “gnaw hydraulic lines” on the airplane bringing them to the facility.

President George W. Bush insisted that there was no rendition-to-torture program, until the day he moved 14 prisoners from the program to the camp, announcing the national security value of interrogating them. Judges, national security officials, prosecutors and other officers of the law insisted that the U.S. court system was too weak to handle such terrible men.

President Obama’s administration has concurred, pushing the closure of Guantanamo further away and buttressing its prognosis for a long life with the banal assertion that there are roughly 48 detainees who will be kept there in “indefinite detention.”

Symbolically, Guantanamo has always had a power far beyond its harboring of captives in the war on terror. For civil libertarians, it represents the rights that the U.S. government violated in the name of that war, most glaringly the tolerance of open-ended detention. For its defenders, Guantanamo marks the United States’ willingness to take the gloves off. Internationally, it is a symbol of the humbling of America. Guantanamo is an invitation for others to say: “See? The United States is just like the rest of us, unable to resist going to the dark side when attacked.”

Guantanamo represents what lies below the surface of America the civilized; it is a window into the lure of the brutal in times of confusion, and a reminder of the forgotten discipline that constitutional democracy requires.

But mostly, Guantanamo is this: It is the place where the United States has decided to collect the universe of post-9/11 moral issues that confound its politicians, laws and people. When in doubt or ignorance, or when just plain challenged by the complexities of national security dilemmas, send the problems to Guantanamo. Don’t know what to do with prisoners captured on the terrorism battlefield? Send them to Guantanamo. Doubtful of the ability of the U.S. courts to try terrorists? Put them in Guantanamo. Anxious about the haunting realities of torture coming to light? Keep those who were tortured at Guantanamo.

So what if we erased all that?

Without Guantanamo, there would be no focal point that so readily called to mind the U.S. role in the war on terror. There would be no one place that encapsulated the errant journey that the nation began in the wake of 9/11, the startling deviation from law and process, from the self-identity of America as law-abiding, confident and fair. The absence of Guantanamo — this one term that evokes so much — would have meant that the United States had not chosen the easy out.

Had there been no Guantanamo, the nation would have had to confront the issues that continue to haunt us: the ability of the Constitution to deal with 21st-century enemies; the strengths and weaknesses of our intelligence services; the uncertainty of who is an enemy and who is not. Without Guantanamo, the country’s leaders would have had to create aboveboard policies that would not have led us into a state of perpetual limbo, now codified by Congress and supported by the president in the form of indefinite detention and military detention for foreign terrorism suspects.

With no Guantanamo, there would still be much to trouble us: the war in Iraq and the lies that got us there, the losses in Afghanistan, the overstepping of the security state into conversations, virtual and otherwise. But there wouldn’t be a glaring badge of shame on the United States. Nor would there be a ready symbol of the country’s willingness to allow national security to trump the rule of law. Without Guantanamo, our moral compass wouldn’t have been so visibly hijacked.

Obama has continued to use Guantanamo as a collection box for the most challenging national security dilemmas. If anything, he has intensified the prison’s role as a catch-all for the confusion of post-9/11 security — as if for each cell emptied of a human being, another is filled with a problem: the use of waterboarding and hearsay, the desire to arrest individuals for association with a terrorist group, the need to have a secondary system of justice, the political attraction of promising Congress that the enemies of the United States will not be allowed onto U.S. soil.

But if we now close Guantanamo, the Pandora’s box of so much that went wrong after 9/11, it would bring to an end the entire era — and with it the anger, frustration, and loss of faith in government and the courts that has lasted a decade. The ignorance that persists, day after day, about who is there and what actual danger they pose to the United States would disappear. Gone would be some of the disappointment with lawmakers who use Guantanamo as a reminder that the nation is beset by threats and thus keep fear alive. Gone would be the emasculation of the U.S. courts as a viable venue for trying terrorism cases.

Could shutting down Guantanamo resolve the legal and moral confusion unleashed by the global war on terror, or would its closure merely be another failed remedy? The answer lies in how it is done. Guantanamo can’t be closed quietly. Rather than just withering away, blanketed in excuses of political constraint and legal complexities, it needs to be shuttered with a clear declaration of rights and wrongs.

Indefinite detention is wrong. Bypassing the courts is wrong. Succumbing to fear until it dominates the law is wrong.

Ultimately, because Guantanamo is a repository not just of prisoners but of America’s confusion, its closure should mark a moment of clarity, and of renewed confidence in our country and the rule of law. Close Guantanamo, and you close the box of sin that the war on terror unleashed, making us, rather than an exceptional nation, one like all the others. Close the box, bury the ills of the past decade, close the doors on a state of limbo and confusion, and America’s true exceptionalism can once again thrive.

“I have here in my hand a list of … names.”

When Sen. Joseph McCarthy told the Ohio County Women’s Republican Club of Wheeling, W.Va., on Feb. 9, 1950, that he held a list of 205 communists employed by the State Department, he ignited a firestorm and launched a career.

We now know there was no list. Even then, it was obvious McCarthy was not particularly punctilious about the numbers. In Wheeling it was 205; in Salt Lake City it was 57; on the Senate floor it was 81. Nor was he especially careful about the allegation. Maybe they weren’t all “card-carrying” communists. Maybe some were just “loyalty risks” or “people with communist connections.”

None of that mattered. The number, so peculiar and precise, seemed like the product of careful calculation by government insiders. And it fit with what many people wanted to believe, which also encouraged a suspension of disbelief.

I thought of all this recently because the “list” is back.

Jan. 11 marks 10 years since the first prisoners arrived at the U.S. military prison at Guantanamo Bay, Cuba. About 170 remain, even though most have been cleared for transfer by both the George W. Bush and Obama administrations, meaning they have been cleared for release from U.S. custody and transfer to the custody of another country. (In the past, the receiving country has typically released the prisoner in a matter of hours or days because they haven’t done anything wrong.) Yet none of these cleared prisoners is likely to leave any time soon, thanks to Congress’ annual pot-clanging fest, also known as the National Defense Authorization Act.

Every year, Congress conditions money for the Defense Department on all manner of draconian amendments. This year, like last year, Congress added restrictions that make it all but impossible for the president to transfer prisoners from the base. Congress passed the amendments in the name of national security and dared the president to veto the bill as we head into a presidential election.

Obama blinked. And you wonder why Americans hate politics.

The restrictions on transfer are motivated by the myth of the superhuman terrorist, a demon so dangerous that every precaution seems essential. And the favorite argument to keep them forever is the so-called list of recidivists. Sen. John McCain (R-Ariz.), for instance, warned during the Senate debate over the defense spending bill that “27% of detainees who were released got back in the fight.”

Claims like this surface periodically. Leave aside the obvious incongruity of describing someone as having “returned” to behavior without having shown they did anything wrong in the first place. All we know is that once they were at Guantanamo, now they aren’t, and someone thinks they may be dangerous.

The last time this issue came up, a colleague and I tried to get to the bottom of it. We filed a request under the Freedom of Information Act. Turns out this “list” is like Gertrude Stein’s Oakland: There’s no there there.

Former Guantanamo prisoners are tracked by the Defense Intelligence Agency. But in response to our request, we learned that the DIA has no fixed criteria to determine whether a person has “returned” to anything: “DIA does not endeavor to create any sort of firm guidelines for identifying a detainee as having returned to the fight. The data collected to support this determination simply varies too greatly to allow for categorical simplification.”

For that reason, the DIA letter said, “the number of persons suspected of having returned to the fight is subject to constant change…. That number will rise and fall as DIA analysts gather new data and information and as those analysts revise their assessments of previously gathered evidence and intelligence.” A person today might be suspected of having returned to the fight because he has no known source of income. But if he gets a job the next day, he could be taken off the list.

Recently, the director of national intelligence told Congress that “81 [former detainees] are confirmed and 69 are suspected of reengaging in terrorist or insurgent activities after transfer.” He said a person can be “confirmed” based on a preponderance of the evidence but “suspected” based on nothing more than “plausible but unverified” information.

But this does not add much because we still do not know what it takes to make the list, or what these people have supposedly done. The government says it demands more than anti-American propaganda, and it describes what it could be, like recruiting someone to participate in a terrorist operation, but it is careful to note it could also be other stuff that’s not on the list. And because officials do not name names, no one can check what they say.

It is certainly true that some people have left Guantanamo and engaged in violent behavior. Independent studies by researchers at Seton Hall University indicate the number is substantially lower than the government’s estimate. As important, even according to the government’s numbers, the overwhelming majority of suspected “recidivists” are alleged to have engaged in unspecified and undefined “terrorist activities” in Turkey and Russia. Only a small percentage who have been released to Afghanistan or Pakistan, where U.S. forces are engaged, are suspected of wrongdoing.

But in a time of superhuman demons and cowed leaders, anyone who claims to hold in their hands a list of names will get what they want, and even cleared prisoners will stay locked up.

In the 10 years since the Guantánamo detention camp opened, the anguished debate over whether to shutter the facility — or make it permanent — has obscured a deeper failure that dates back more than a century and implicates all Americans: namely, our continued occupation of Guantánamo itself. It is past time to return this imperialist enclave to Cuba.

From the moment the United States government forced Cuba to lease the Guantánamo Bay naval base to us, in June 1901, the American presence there has been more than a thorn in Cuba’s side. It has served to remind the world of America’s long history of interventionist militarism. Few gestures would have as salutary an effect on the stultifying impasse in American-Cuban relations as handing over this coveted piece of land.

The circumstances by which the United States came to occupy Guantánamo are as troubling as its past decade of activity there. In April 1898, American forces intervened in Cuba’s three-year-old struggle for independence when it was all but won, thus transforming the Cuban War of Independence into what Americans are still wont to call the Spanish-American War. American officials then excluded the Cuban Army from the armistice and denied Cuba a seat at the Paris peace conference. “There is so much natural anger and grief throughout the island,” the Cuban general Máximo Gómez remarked in January 1899, after the peace treaty was signed, “that the people haven’t really been able to celebrate the triumph of the end of their former rulers’ power.”

Curiously, the United States’ declaration of war on Spain included the assurance that America did not seek “sovereignty, jurisdiction, or control” over Cuba and intended “to leave the government and control of the island to its people.”

But after the war, strategic imperatives took precedence over Cuban independence. The United States wanted dominion over Cuba, along with naval bases from which to exercise it.

Enter Gen. Leonard Wood, whom President William McKinley had named military governor of Cuba, bearing provisions that became known as the Platt Amendment. Two were particularly odious: one guaranteed the United States the right to intervene at will in Cuban affairs; the other provided for the sale or lease of naval stations. Juan Gualberto Gómez, a leading delegate to the Cuban Constitutional Convention, said the amendment would render Cubans “a vassal people.” Foreshadowing the Cuban Missile Crisis, he presciently warned that foreign bases on Cuban soil would only draw Cuba “into conflict not of our own making and in which we have no stake.”

But it was an offer Cuba could not refuse, as Wood informed the delegates. The alternative to the amendment was continued occupation. The Cubans got the message. “There is, of course, little or no real independence left Cuba under the Platt Amendment,” Wood remarked to McKinley’s successor, Theodore Roosevelt, in October 1901, soon after the Platt Amendment was incorporated into the Cuban Constitution. “The more sensible Cubans realize this and feel that the only consistent thing now is to seek annexation.”

But with Platt in place, who needed annexation? Over the next two decades, the United States repeatedly dispatched Marines based at Guantánamo to protect its interests in Cuba and block land redistribution. Between 1900 and 1920, some 44,000 Americans flocked to Cuba, boosting capital investment on the island to just over $1 billion from roughly $80 million and prompting one journalist to remark that “little by little, the whole island is passing into the hands of American citizens.”

How did this look from Cuba’s perspective? Well, imagine that at the end of the American Revolution the French had decided to remain here. Imagine that the French had refused to allow Washington and his army to attend the armistice at Yorktown. Imagine that they had denied the Continental Congress a seat at the Treaty of Paris, prohibited expropriation of Tory property, occupied New York Harbor, dispatched troops to quash Shays’ and other rebellions and then immigrated to the colonies in droves, snatching up the most valuable land.

Such is the context in which the United States came to occupy Guantánamo. It is a history excluded from American textbooks and neglected in the debates over terrorism, international law and the reach of executive power. But it is a history known in Cuba (where it motivated the 1959 revolution) and throughout Latin America. It explains why Guantánamo remains a glaring symbol of hypocrisy around the world. We need not even speak of the last decade.

If President Obama were to acknowledge this history and initiate the process of returning Guantánamo to Cuba, he could begin to put the mistakes of the last 10 years behind us, not to mention fulfill a campaign pledge. (Given Congressional intransigence, there might be no better way to close the detention camp than to turn over the rest of the naval base along with it.) It would rectify an age-old grievance and lay the groundwork for new relations with Cuba and other countries in the Western Hemisphere and around the globe. Finally, it would send an unmistakable message that integrity, self-scrutiny and candor are not evidence of weakness, but indispensable attributes of leadership in an ever changing world. Surely there would be no fitter way to observe today’s grim anniversary than to stand up for the principles Guantánamo has undermined for over a century.

On Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.

When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.

I went on a hunger strike for two years because no one would tell me why I was being imprisoned. Twice each day my captors would shove a tube up my nose, down my throat and into my stomach so they could pour food into me. It was excruciating, but I was innocent and so I kept up my protest.

In 2008, my demand for a fair legal process went all the way to America’s highest court. In a decision that bears my name, the Supreme Court declared that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.” It ruled that prisoners like me, no matter how serious the accusations, have a right to a day in court. The Supreme Court recognized a basic truth: the government makes mistakes. And the court said that because “the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.”

Five months later, Judge Richard J. Leon, of the Federal District Court in Washington, reviewed all of the reasons offered to justify my imprisonment, including secret information I never saw or heard. The government abandoned its claim of an embassy bomb plot just before the judge could hear it. After the hearing, he ordered the government to free me and four other men who had been arrested in Bosnia.

I will never forget sitting with the four other men in a squalid room at Guantánamo, listening over a fuzzy speaker as Judge Leon read his decision in a Washington courtroom. He implored the government not to appeal his ruling, because “seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” I was freed, at last, on May 15, 2009.

Today, I live in Provence with my wife and children. France has given us a home, and a new start. I have experienced the pleasure of reacquainting myself with my daughters and, in August 2010, the joy of welcoming a new son, Yousef. I am learning to drive, attending vocational training and rebuilding my life. I hope to work again serving others, but so far the fact that I spent seven and a half years as a Guantánamo prisoner has meant that only a few human rights organizations have seriously considered hiring me. I do not like to think of Guantánamo. The memories are filled with pain. But I share my story because 171 men remain there. Among them is Belkacem Bensayah, who was seized in Bosnia and sent to Guantánamo with me.

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice.

I left Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.

When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”

I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country. Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law.

How did I arrive at this point? This Wednesday is the 10th anniversary of the opening of the detention camp at the American naval base at Guantánamo Bay, Cuba. I am not a terrorist. I have never been a member of Al Qaeda or supported them. I don’t even understand their ideas. I am the son of Turkish immigrants who came to Germany in search of work. My father has worked for years in a Mercedes factory. In 2001, when I was 18, I married a devout Turkish woman and wanted to learn more about Islam and to lead a better life. I did not have much money. Some of the elders in my town suggested I travel to Pakistan to learn to study the Koran with a religious group there.

I made my plans just before 9/11. I was 19 then and was naïve and did not think war in Afghanistan would have anything to do with Pakistan or my trip there. So I went ahead with my trip.

I was in Pakistan, on a public bus on my way to the airport to return to Germany when the police stopped the bus I was riding in. I was the only non-Pakistani on the bus — some people joke that my reddish hair makes me look Irish — so the police asked me to step off to look at my papers and ask some questions. German journalists told me the same thing happened to them. I was not a journalist, but a tourist, I explained. The police detained me but promised they would soon let me go to the airport. After a few days, the Pakistanis turned me over to American officials. At this point, I was relieved to be in American hands; Americans, I thought, would treat me fairly.

I later learned the United States paid a $3,000 bounty for me. I didn’t know it at the time, but apparently the United States distributed thousands of fliers all over Afghanistan, promising that people who turned over Taliban or Qaeda suspects would, in the words of one flier, get “enough money to take care of your family, your village, your tribe for the rest of your life.” A great number of men wound up in Guantánamo as a result.

I was taken to Kandahar, in Afghanistan, where American interrogators asked me the same questions for several weeks: Where is Osama bin Laden? Was I with Al Qaeda? No, I told them, I was not with Al Qaeda. No, I had no idea where bin Laden was. I begged the interrogators to please call Germany and find out who I was. During their interrogations, they dunked my head under water and punched me in the stomach; they don’t call this waterboarding but it amounts to the same thing. I was sure I would drown.

At one point, I was chained to the ceiling of a building and hung by my hands for days. A doctor sometimes checked if I was O.K.; then I would be strung up again. The pain was unbearable.

After about two months in Kandahar, I was transferred to Guantánamo. There were more beatings, endless solitary confinement, freezing temperatures and extreme heat, days of forced sleeplessness. The interrogations continued always with the same questions. I told my story over and over — my name, my family, why I was in Pakistan. Nothing I said satisfied them. I realized my interrogators were not interested in the truth.

Despite all this, I looked for ways to feel human. I have always loved animals. I started hiding a piece of bread from my meals and feeding the iguanas that came to the fence. When officials discovered this, I was punished with 30 days in isolation and darkness.

I remained confused on basic questions: why was I here? With all its money and intelligence, the United States could not honestly believe I was Al Qaeda, could they?

After two and a half years at Guantánamo, in 2004, I was brought before what officials called a Combatant Status Review Tribunal, at which a military officer said I was an “enemy combatant” because a German friend had engaged in a suicide bombing in 2003 — after I was already at Guantánamo. I couldn’t believe my friend had done anything so crazy but, if he had, I didn’t know anything about it.

A couple of weeks later, I was told I had a visit from a lawyer. They took me to a special cell and in walked an American law professor, Baher Azmy. I didn’t believe he was a real lawyer at first; interrogators often lied to us and tried to trick us. But Mr. Azmy had a note written in Turkish which he had gotten from my mother, and that made me trust him. (My mother found a lawyer in my hometown in Germany who heard that lawyers at the Center for Constitutional Rights represented Guantánamo detainees; the center assigned Mr. Azmy my case.) He did not believe the evidence against me and quickly discovered that my “suicide bomber” friend was, in fact, alive and well in Germany.

Mr. Azmy, my mother and my German lawyer helped pressure the German government to secure my release. Recently, Mr. Azmy made public a number of American and German intelligence documents from 2002 to 2004 that showed both countries suspected I was innocent. One of the documents said American military guards thought I was dangerous because I had prayed during the American national anthem.

Now, five years after my release, I am trying to put my terrible memories behind me. I have remarried and have a beautiful baby daughter. Still, it is hard not to think about my time at Guantánamo and to wonder how it is possible that a democratic government can detain people in intolerable conditions and without a fair trial.

In his inaugural address, President Obama called on us to “reject as false the choice between our safety and our ideals.” We agree. Now, to protect both, he must veto the National Defense Authorization Act that Congress is expected to pass this week.

This budget bill — which can be vetoed without cutting financing for our troops — is both misguided and unnecessary: the president already has the power and flexibility to effectively fight terrorism.

One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past. Some claim that this provision would merely codify existing practice. Current law empowers the military to detain people caught on the battlefield, but this provision would expand the battlefield to include the United States — and hand Osama bin Laden an unearned victory long after his well-earned demise.

A second provision would mandate military custody for most terrorism suspects. It would force on the military responsibilities it hasn’t sought. This would violate not only the spirit of the post-Reconstruction act limiting the use of the armed forces for domestic law enforcement but also our trust with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans. It would sideline the work of the F.B.I. and local law enforcement agencies in domestic counterterrorism. These agencies have collected invaluable intelligence because the criminal justice system — unlike indefinite military detention — gives suspects incentives to cooperate.

Mandatory military custody would reduce, if not eliminate, the role of federal courts in terrorism cases. Since 9/11, the shaky, untested military commissions have convicted only six people on terror-related charges, compared with more than 400 in the civilian courts.

A third provision would further extend a ban on transfers from Guantánamo, ensuring that this morally and financially expensive symbol of detainee abuse will remain open well into the future. Not only would this bolster Al Qaeda’s recruiting efforts, it also would make it nearly impossible to transfer 88 men (of the 171 held there) who have been cleared for release. We should be moving to shut Guantánamo, not extend it.

Having served various administrations, we know that politicians of both parties love this country and want to keep it safe. But right now some in Congress are all too willing to undermine our ideals in the name of fighting terrorism. They should remember that American ideals are assets, not liabilities.

The prison at Guantanamo Bay, Cuba, is again in the news. The two Americans released this month by Iran have reported that when they complained about conditions in their Tehran prison, the jailers would “immediately remind us of comparable conditions at Guantanamo Bay.” Such is the power of symbols.

Symbols are important, and we ignore them at our peril. But even in these hyperpartisan times, when symbols are baseball bats used by thugs in the public square to beat reason senseless, I like to pretend that the truth is worth pursuing. And one part of that truth is that conditions at Guantanamo are vastly superior to those at any maximum-security prison on the U.S. mainland.

I say this as the lawyer who has been involved in challenges to Guantanamo longer than anyone in the United States. I was counsel of record in Rasul vs. Bush, the first Guantanamo case in the Supreme Court, and today represent Abu Zubaydah, who was the first person tortured by the CIA and the man for whom the infamous torture memos were written. After our victory in Rasul, I was one of the first lawyers to go to the prison, and by now I cannot count the number of times I have returned there.

Conditions were not always as they are today. Beginning in late 2002 and continuing well into 2004, the interrogation techniques at Guantanamo were equal parts crude and cruel. It was stupidity, sometimes torture, and no amount of after-the-fact rationalization can make it better. Living conditions were likewise appalling, at first to facilitate the interrogations and later as a result of a misguided crackdown after three prisoners committed suicide. But interrogations have long ended, and since late 2006, conditions have improved.

That, in turn, should dispatch another myth: that improvements at the base are somehow the work of the Obama administration. Such drivel reveals a fundamental misunderstanding of American government. The fact is that the great majority of the senior career officers in the U.S. military never wanted to make Guantanamo into the pit that it became in late 2002. But it was not until late 2006 that the iron grip of Vice President Dick Cheney and his legal counsel and later chief of staff David Addington loosened enough that the officers could reclaim the prison and begin to reshape it in a more humane form. The military deserves the credit for improvements at the prison, not the Obama administration.

But if we agree that the truth is worth pursuing, then we should not stop halfway. We should not stop, as partisans may like, with the acknowledgment that conditions are much improved. The whole truth is that the prison remains a disaster. While the great moral bankruptcy of the base was once its conditions, today it is the shameful fact that scores of prisoners who have been cleared for transfer by two administrations remain in custody.

No one suggests they have committed a war crime; no one suggests they will be prosecuted in military or civilian court; everyone involved in their detention agrees they pose no threat to the United States and that they should be transferred to their home countries. Yet they languish for no better reason than because truth cannot breathe in this toxic atmosphere. They may never hold their children, or say goodbye to a dying mother. Their fate is the four walls of a prison cell, and the country should not congratulate itself on the fact that once the prison was worse.

Some say the prisoners may challenge their detention in court. They may seek, as the lawyers say, a writ of habeas corpus. But no one takes that seriously anymore. For all the foolish talk about judicial independence, the same hysteria has settled over both the Capitol and the courthouse. Today, the judiciary is to law not quite what the Chicago Black Sox were to baseball, but every bit what Keystone was to cops.

Yet so ridiculous the whole debate has become that even to utter these words risks a special sort of opprobrium — the mark of the traitor, either to the left, which is committed to using any excuse to bash the prison, or to the right, which invokes any falsehood so long as it helps keep every prisoner there forever. Today, what passes for intelligent discussion summons to mind James Russell Lowell, from more than a century ago:

I loved my country so, as only they

Who love a mother fit to die for may;

I loved her old renown, her stainless fame.

What better proof than that I loathed her shame?

Barack Obama‘s first executive order when he was made president called for the closure of Guantánamo Bay as quickly as possible. He didn’t follow through immediately when he had the chance – when he was still riding high on his election victory and the world was in love with him. Instead, he tried to work with the Republicans to create a bipartisan solution, an effort which failed dismally.

Now, with the killing of Osama bin Laden, President Obama again has a window in which to close this prison. Indeed, it could even be a shrewd political move, a demonstration to a world which is questioning the legality of Bin Laden’s killing that the president has a handle on what is right.

Discussion of the legitimacy of Bin Laden’s killing is somewhat fruitless; we do not have and probably never will have the details. It can be argued that entering into an allied nation’s sovereign territory without permission and shooting an unarmed person, even if he is an enemy leader, is both questionable under international law and a disappointing missed opportunity to put one of the most noted terrorists in history in the dock.

But it is at least arguable that it was a legitimate action. Congress’s authorisation of use of military force legislation – passed in relation to those responsible for 9/11 – definitely allowed for the use of military force: “The president is authorised to use all necessary and appropriate force against those nations, organisations or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harboured such organisations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organisations or persons.”

Maybe President Obama could grasp this opportunity to say: “We did the right thing here. And also, we have an unlawful prison which contains a bunch of prisoners who have been cleared for release for many years and who are on any view harmless. We are going to do the right thing about that too. I said that we would close it several years ago – now we are actually going to do it. And while I’m at it, I will reaffirm that torture is not the way that civilised nations get their intelligence.”

It would not be easy. Some Republicans are taking this opportunity to tout torture wherever they can. Fox News seems to consider its corporate mission to be the promotion of torture as an intelligence policy. This, despite convincing arguments that the information which led to the capture of Bin Laden did not come from torture. Even Donald Rumsfeld said: “It is true that some information that came from normal interrogation approaches at Guantánamo did lead to information that was beneficial in this instance. But it was not harsh treatment and it was not waterboarding.”

Then there is what to do with the people in Guantánamo. Because Obama did not seize the moment to resettle the Uighers – whose innocence of terrorism is now unchallenged by anyone – in the US, he has now lost any momentum to resettle anyone from Guantánamo in the US. Thus, he has to find allied nations to take the men in order to close the prison.

In addition, there is the money – Congress’s National Defence Authorisation Act for 2011 contained restrictions on public money being used to bring Guantánamo detainees to the United States or transfer them to foreign countries. When he signed this act, Obama said he would “seek repeal of these restrictions”. This has not happened. Now it is time to do it.

Even without repealing the act, there are some things the Obama administration could do to get the zero threat people out of Guantánamo: when they win their habeas litigation, the hearing in which the case against a detainee is brought before a court, the administration could choose not to appeal. They could stop litigating the habeas litigation in a mindlessly aggressive way which perpetuates the image of these men as being dangerous. They could negotiate consent orders which would agree to their release.

As I say, it would not be easy, but Barack Obama applied for the job. Everyone has tricky things on their “to do” list, but this is not you or me. The president is in a pretty good bargaining position – not only is he is the most powerful man in the world, he has incredible popular support now and for the next few weeks. If he were to put sufficient political welly into this, he could close Guantánamo Bay.

Empieza la primera mañana de mayo y el sol aún no pica tan fuerte sobre la piel, aunque ya la intolerancia parece irradiar desde su punto más alto. Con el rostro encapuchado, camisa y pantalones anaranjados, un joven intenta desfilar en la plaza de la Revolución habanera durante la celebración del Día Internacional de los Trabajadores. Tanto la indumentaria como el cartel que lleva conforman una espontánea protesta por los presos que el Gobierno de Estados Unidos mantiene en la base naval de Guantánamo. Su tránsito frente a la tribuna dura apenas unos segundos, hasta que varios hombres fornidos lo descubren y lo empujan hacia un costado de la marea humana.

No hay espacio para el libre albedrío en estas coreografías populares largamente programadas, así que se lo llevan y solo algunas decenas de personas y el lente indiscreto de una cámara captan el momento de la detención. El calor ya resulta agobiante sobre el asfalto capitalino y faltan apenas unas pocas horas para que se dé a conocer la muerte de Osama Bin Laden.

La zona militar que posee Estados Unidos al sureste de Cuba, también conocida como Gitmo, es el escenario de numerosos dramas humanos que se suceden a ambos lados de unos límites demarcados -e impuestos contra la voluntad popular- desde la lejana Enmienda Platt.

Recientes revelaciones de Wikileaks evidenciaron el alto número de encarcelados dentro de sus campos X-Ray, Delta y Echo que podrían haber sido inocentes. Chóferes, granjeros y hasta cocineros que resultaron capturados durante redadas en Afganistán debieron esperar años para que se aclarara su identidad y poder irse de vuelta a casa.

Quizás alguno de ellos lograba divisar desde su celda los límites de la base naval donde estaba recluido, ver las postas perennes que vigilan la demarcación y fantasear que si lograba burlarlas encontraría -en la otra parte- la libertad.

Falsa ilusión, pues Raúl Castro había declarado en 2002 que si un prisionero conseguía escapar hacia el interior del país, sería devuelto de inmediato a las tropas norteamericanas. “Si es que queda algo”, agregó con sorna, en alusión a los campos de minas que su propio Gobierno se niega aún a desactivar.

Esa pequeña porción del oriente de Cuba es por demás una de las zonas más minadas del mundo, y no solo desde el punto de vista ideológico. En el municipio Caimanera se vive a pocos metros de una frontera plantada de explosivos antipersonales. Una peligrosa franja de muerte cuya existencia contradice la convención de Otawa 1997 que prohíbe el empleo, almacenamiento, producción y transferencia de estas peligrosas trampas que mutilan cuerpos.

Hace apenas unas semanas un joven de 16 años y su hermano jugaban con un objeto que habían encontrado cerca de su escuela en el poblado de Boquerón. Lo patearon y entonces llegó el estruendo con visos de relámpago, enviando al más pequeño al hospital y al otro al cementerio. La prensa oficial no dijo ni una sola palabra al respecto y la familia guardó silencio por miedo a represalias. “Otras víctimas de este Guantánamo dividido”, pensaron los que han crecido entre las tentativas de escapar, las detonaciones y los llantos.

A pesar de los elevados peligros, no solo quienes han sido acusados de tener nexos con Al Qaeda sueñan con saltarse la alambrada. Los guantanameros cercanos a la zona añoran también esa ciudad levantada por los yumas [estadounidenses] y que a pesar de estar tan cerca ellos no han podido nunca transitar. Una pequeña orbe donde se habla inglés, hay un centro comercial y abren sus puertas varios restaurantes y dos cines al aire libre.

El secretismo de esa zona militar atrae los titulares de los periódicos en otras partes del mundo, mientras la posibilidad de emigrar hacia ella cautiva a los cubanos que viven del lado de acá. El riesgo es enorme, pero no por ello dejan de intentar llegar hacia esa área de la bahía donde ondea la bandera de múltiples estrellas. Justo hasta el lugar donde se extendieron los campamentos improvisados que albergaron a miles de balseros cubanos con posterioridad a la explosión migratoria de 1994. Aunque ahora la mayoría de los que intentan la travesía por tierra muere en el campo minado y los pocos que logran llegar son devueltos de inmediato a las autoridades cubanas.

No siempre los muros y los límites separan la diferencia. A veces sencillamente trazan una línea divisoria entre los iguales, entre realidades o individuos que se asemejan en sus sueños o en sus problemas.

Es el caso de este contorno definido por un tratado de hace más de 100 años, de esta frontera alrededor de la cual habita el deseo humano de escapar hacia el lado que no conoce. Unos llevan uniformes anaranjados, purgan largas condenas y son aludidos con frecuencia en los medios extranjeros. Los otros arrastran la monotonía de sus vidas, sus escaseces, la frustración que los empuja a arriesgarse para llegar hacia ese Guantánamo que imaginan, pero que no conocen.

George Orwell is usually a footsure guide across political battlegrounds. In late 1943, when the tide had turned in the Allies’ favor, he wrote about postwar trials. Oddly, he advocated Hitler and Mussolini slipping away. His verdict for them would not be death unless the Germans and Italians themselves carried out summary executions (as they eventually did in Mussolini’s case).

He wanted “no martyrizing, no St. Helena business.” Above all, he disdained the idea of a “solemn hypocritical ‘trial of war criminals,’ with all the slow cruel pageantry of the law, which after a lapse of time has so strange a way of focusing a romantic light on the accused and turning a scoundrel into a hero.”

For once Orwell missed his step. The Allies did stage a trial of the Nazi war criminals, at Nuremberg. (My father, Hartley, was the chief British prosecutor.) The trial had flaws. To some it will always seem to be “victors’ justice” and it can be called hypocritical in that the Soviet Union, guilty of many of its own crimes against humanity, was an equal partner with the democratic prosecutors and judges.

But, over all, it succeeded very well. It was solemn, as it should have been, and what Orwell called “the pageantry of the law” was neither cruel nor slow — the trial began in November 1945 (remarkably this was only six months after the German surrender) and was all over by the following October. Would that anything could be done so efficiently today.

Most of the Nazi defendants were found guilty and executed, others were given lesser sentences and some were acquitted. Orwell’s fear that they would later be cast in a romantic light and turned from scoundrels into heroes has not been realized. They are still seen as mass murderers.

Nuremberg not only dispatched justice swiftly, it also created a historical narrative that has survived. Robert H. Jackson, the chief American prosecutor and the driving force behind the trials, told President Harry S. Truman that he had assembled more than five million pages of evidence. The files of the SS alone needed six freight cars to carry them. Subsequently the tribunal published 11 volumes of documents and 20 volumes devoted to the proceedings alone. The eminent British historian Alan Bullock wrote of his excitement at reading through these records: whatever the arguments about justice, “from the point of view of the historian the Nuremberg trials were an absolutely unqualified wonder.” Nuremberg was essential in creating memory and senses of responsibility, in Germany itself and far beyond.

Nuremberg, lest we forget, was a military tribunal with civilian lawyers and it offered far fewer protections to the Nazis in the dock than the military commissions at Guantánamo will give to Khalid Shaikh Mohammed and his co-defendants in the 9/11 attacks. Military justice worked then and it can work again today.

This is not the place to repeat the fierce disputes over President Obama’s decision last week to prosecute Mr. Mohammed before a military commission instead of a civilian court. What they show above all is that there are no absolute truths; law is argument.

Many of the important Supreme Court decisions in the war on terrorism have been made by slim majorities, one way or another. In such complicated areas it is rare to find unanimity. This is not surprising. Indeed, such debate is a token of the vitality of American jurisprudence.

I understand why many people believe that in the hugely important, and hugely symbolic, case of Khalid Shaikh Mohammed, America would be best served by justice being dispensed in an open federal court. But United States military law should not be dismissed. It has a distinguished history dating back to 1775; every year military courts dispense justice to thousands of Americans. And don’t forget that the Qaeda detainees in Guantánamo will all be presumed innocent, their guilt must be proved beyond reasonable doubt, and each will have the right of appeal all the way to the Supreme Court.

As far as Al Qaeda and its associates are concerned, it does not make the slightest difference whether its members are tried in federal or military courts — Islamists regard each as equally illegitimate. As Anwar al-Awlaki, one of Al Qaeda’s most prominent ideologues today, has said, Muslims must not be forced to accept the rulings of Western courts; he insists that for Muslims to abide by Western laws is to live like sheep “stripped from their right to live as Muslims under the law of Islam.”

No form of Western justice will ever be accepted by Al Qaeda. But President Obama could seek to make trials in Guantánamo more accessible to the rest of the world. One should never forget that most of the people killed by Al Qaeda around the world are not Americans — the majority are innocent Muslims caught up in Islamist killing sprees in Iraq, Pakistan, Afghanistan, Somalia and elsewhere.

Even on Sept. 11, hundreds of those killed were non-Americans. Britain lost 67 people that day. Their families, too, have an interest in seeing justice done. They could also assist.

The United States is well practiced at military officer exchanges. Why not invite those nations with a jurisdictional claim against Mr. Mohammed — those which lost citizens on 9/11 — to send cleared and qualified senior military lawyers to serve in the court at Guantánamo? This could be done after Congressional modification of the 2009 Military Commissions Act to determine in what roles they could serve. Britain, Japan and Ghana are three countries that could qualify.

Such internationalization of the court in Guantánamo would call the bluff of those American allies who benefit from American protection but cannot resist criticizing its processes. It would not be precisely modeled on the successful tribunal at Nuremberg, but it would follow in that hybrid tradition of using the best civilian and military advocates, prosecutors and processes all carrying out their tasks in the full view of the press.

The trial of Khalid Shaikh Mohammed and his co-defendants is of vital significance because it addresses not just a group of thugs but the enduring human phenomenon of evil. No two eras are the same, nor are the threats they face identical. But evil is eternal and re-invents itself in every age.

In the 1940s the world confronted and, with immense sacrifice, defeated the evil of fascism. The scale and the nature of the threat is different today but true menace — from the attacks of 9/11 itself to the recent beheading of United Nations workers in Afghanistan simply because a Koran was burned in Florida — lurks patient and opportunistic. It cannot be appeased any more than Hitler could be appeased.

Despite Orwell’s misgivings, at Nuremberg our civilization designed a vehicle to anathemize men imbued with evil. And it created a historical narrative that proved invaluable throughout the decades since. The case against Khalid Shaikh Mohammed and his friends must develop a similar, vital history of Al Qaeda to inform generations to come. Nuremberg is a precedent on which the United States can build with pride in this new and essential trial.

The system of military commissions that will try Khalid Shaikh Mohammed and four other alleged 9/11 plotters contains a dirty little secret. Hardly anybody talks about it, but it’s a key reason for concern as the apparatus becomes established.

It is this: The commissions can operate inside the United States, and they have jurisdiction over a broad range of crimes. Nothing in the Military Commissions Act limits the military trials to Guantanamo detainees, or to people captured and held abroad, or even to terrorism suspects. Nothing prevents the commissions from trying noncitizens, arrested inside the country, whom the president unilaterally designates as “unprivileged enemy belligerents.” In other words, the law permits military officers to try non-Americans from Alabama and Arkansas as well as Afghanistan.

The Obama administration’s decision last week to shift the high-profile 9/11 case from federal court is bound to move the military system toward legitimacy. The commissions lack the seasoned body of precedent that guides civilian courts, so their procedures will have to survive litigation by defense lawyers. But once the commissions gain stature and become the “new normal,” every future administration will have a ready instrument to arrest, judge and sentence wholly within the executive branch, evading the separation of powers carefully calibrated in the Constitution. The judicial branch has no role except on appeal, where only the federal court for the D.C. circuit may review a verdict and sentence after the trial.

It seems far-fetched to imagine tribunals in San Francisco as well as Guantanamo, yet the law allows the spread of such a system, impeded only by officials’ restraint. Atty. Gen. Eric H. Holder Jr. pledged Monday to restrict the use of commissions, but one official’s good intentions cannot shield civil liberties from government intrusion. Restraint usually dies during spasms of fear over national security.

The framers saw that rights depend on structural bulwarks, not on particular officeholders. “All men having power ought to be distrusted to a certain degree,” James Madison declared at the Constitutional Convention as he noted “the political depravity of men and the necessity of checking one vice and interest by opposing to them another vice and interest.” The checks are being eroded here.

Because terrorism has fostered a concept of war as boundless and timeless, many crimes normally tried in civilian courts can be brought under the shifting rubric of war, granting military commissions broad jurisdiction. Provided the offense is committed in the context of “hostilities,” defined as “any conflict subject to the laws of war,” commissions may try a noncitizen on charges that include spying, seizing property for private use, taking hostages, rape, sexual assault, hijacking, mistreating a dead body or improperly using a truce flag or distinctive emblem, as well as murder, torture or material support for terrorism.

A trial has a truth-finding mission. Its accuracy is determined by a panoply of rights: to effective counsel, to summon and confront witnesses, to exculpatory evidence. These rights are weaker before military commissions than in courts-martial or criminal courts; although enhanced by 2009 amendments to the 2006 Military Commissions Act, they still allow certain hearsay and statements coerced during combat or capture. So the military commissions’ findings may be less reliable.

But the truth may already be known in the 9/11 case. The accused are reportedly ready to confirm their roles in the attacks, not in a spirit of guilt but of pride. Their trial will be a pageant and a precedent, a rendering of the expected judgment and sentence — and then a legal legacy.

It is the symbolism, not the legal impact, that has been most vigorously debated. Yet it’s the legal damage that is likely to remain long after the five are tried. Symbolically, a strange symmetry unites both the defendants and those in Congress who see a military trial reflecting the 9/11 attack as an act of war, larger than a common crime. Supporters of a civilian trial did not favor a different outcome but rather a different message — the display of a crown jewel in our constitutional democracy: the criminal justice system with its full array of individual rights.

Long after the verdicts and sentences, the plotters will continue to wound the country, now with American cooperation. If ultimately upheld by the Supreme Court, the elements of the military commissions will pass into the precedent of case law, creating a permanent apparatus, parallel to the criminal justice system, to prosecute and try foreign civilians. It could become a lasting injury of Sept. 11.

It’s official. Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will be tried by a military commission at Guantanamo Bay.

He will not be tried in Manhattan in the shadow of the World Trade Center. He will not be tried before the vast majority of the victims’ families. Nor will he be tried in any federal court. Instead, he will be tried offshore in a military commission process established in 2009 and yet to be tested. It is likely that he will be convicted of conspiring to plan and commit the attacks of 9/11 and that, he, along with his four co-defendants, the other 9/11 detainees at Guantanamo, will be given life sentences, if not the death penalty.

For those of us who have fought vociferously for the use of the federal court system to try terrorism suspects, the Obama administration’s decision is, on its surface, a defeat. The numbers make it clear: Since the Sept. 11 attacks, 174 individuals have been convicted of jihadi-related terrorism in federal court, an 87 percent conviction rate, according to the most recent figures from the NYU Center on Law and Security terrorist trial report card.

From the early 1990s on, the courts have learned how to handle the challenges of terrorism cases, from classified or tainted evidence to the relevance of al-Qaeda’s strategic and tactical goals. The abandonment of the hard-earned professionalism of the judges, prosecutors and defense attorneys is a loss.

But it is not a defeat for justice itself. It is time to give up our long-standing protest and consider the good that can come from these trials — even if they are held at Guantanamo, and even if they are conducted by the military.

In prosecuting Mohammed, we will be trying the individual without whom there presumably would have been no 9/11 attack; the fact that he is secondary to Osama bin Laden in al-Qaeda’s hierarchy does not reduce his guilt. In a sense, he is the Eichmann of the attack, and his trial is no less important than was that of Hitler’s operational director.

Trying Mohammed and his co-conspirators for a crime that took place 10 years ago can only be seen as a positive. It is unfair that the country has waited this long to bring to justice anyone directly linked to 9/11. If part of the purpose of trials is to bring closure to the open wounds that result from wrongdoing, then the trial matters more than the venue, the jurisdiction or even the system itself.

The country’s need for some sort of closure around the Sept. 11 attacks was illustrated in part by the fear of having this trial in Manhattan. Although it is likely that few victims’ families will now be able to watch the proceedings in person, they will know what is happening, and they will be able to achieve some sense of justice and begin to heal.

There is a further benefit. The details of the 9/11 conspiracy remain a mystery to much of the American public. The trial will turn mystery into fact.

At present, we know generally about bin Laden, al-Qaeda’s determination to harm the United States and the failures of U.S. intelligence. But we don’t know details about these five men and their step-by-step intersection with the attacks — details that were outlined in the criminal indictment that was unsealed in New York this past week. The indictment lists the sequence of activities that made up the attacks and highlights the criminality of the conspiracy. Presumably, those facts will be central to the evidence presented at trial at Guantanamo.

The 9/11 attacks were a carefully conceived and coldheartedly implemented plot of immense destruction. They were not the work of men with superhuman powers, as al-Qaeda terrorists are often portrayed. Better knowledge of the story will not diminish the magnitude of the harm, but it will probably diminish the powerful mystique that so often surrounds al-Qaeda. Reducing the organization to flesh-and-blood figures, to individuals rather than a vast and dangerous specter, will be hugely significant in teaching the country that, although al-Qaeda is an enemy that arguably perpetrated the worst crime in American history, it is not invincible.

Admittedly, there are numerous pitfalls that threaten the military commission system. These trials will differ from those in the federal system in several ways. They will rely on a panel of at least five military judges, and the evidentiary standards will not be the same as those in federal court, though it is unlikely that evidence attained by torture will be allowed. There will be broader allowances for hearsay, and access for families to view the proceedings will be more limited.

In addition, there are worries — which would come with any trial — about giving a platform to Mohammed and his ideological pronouncements. Even the possibility of the death penalty is problematic, as he has expressed a desire to be martyred. In addition, the judges must able to keep the defendants and the courtroom under control, and the track record of trials at Guantanamo has fallen well below standards for evidence, legal tactics and courtroom decorum.

The fact is that this trial is going to take place. It’s not ideal. I would have preferred to see the case in the civilian courts. But a military trial is far preferable to the perpetual limbo of indefinite detention without trial — the very definition of Guantanamo.

The trial of Mohammed and his co-conspirators will signify a step forward in the nation’s ability to counter terrorism in a rational fashion. Rather than assume that the proceedings will fall below the standards of federal courts, let’s expect wise judgment in place of retributive justice. Let’s look for an enlightened use of the leeway provided by the Military Commissions Act. Let’s hope that, despite the unique limitations and allowances of that law, the presiding judge will keep this trial as close to the federal standards as possible.

These proceedings, nearly 10 years in the making, are likely to set the precedent for how this country tries terrorism suspects. Although it is outside the federal justice system, this trial could begin to restore the nation’s confidence in its ability to administer justice to even the most vile criminals — a confidence that may one day return trials for detainees in the war on terror to the nation’s long-tested federal courts system.

CIA Director Leon Panetta told Congress this month that if captured, Osama bin Laden would be sent to Guantanamo. This was no surprise to those who follow news of the controversial detention facility. It was, however, a concern – not because Guantanamo is still open for business but because, by maintaining the status quo, pressing questions about the future of U.S. and international counterterrorism strategies continue to be ignored. There is no answer to “what’s next” for terrorist detention efforts.

For all of the media attention on Guantanamo Bay, debates about the future of this facility and its detainees have not changed significantly in more than five years. Even President Obama’s pledge to close Guantanamo within a year of taking office affected little, save briefly improving the U.S. government’s public posture on the issue.

This focus on detainees who are already in custody has drowned out a more important discussion: What about detainees yet to be captured? Panetta might as well have said: Of course the world’s most notorious terrorist would be transferred to Guantanamo if he were caught – where else could he go?

Bringing terrorists to the United States remains an option. But the feasibility of prosecuting international terrorists in civilian courts is still a concern, particularly for those captured on the battlefield. Yes, a U.S. civilian court sentenced Ahmed Khalfan Ghailani, a Guantanamo detainee, to life in prison for his part in the 1998 bombing of American embassies in Tanzania and Kenya. But he was acquitted of 284 other charges. Few in the United States are convinced that the U.S. judicial system is prepared to handle terrorists who represent an ongoing threat – not just to the United States but to the international community.

How else can we handle the most dangerous terrorists, individuals such as bin Laden, Ayman al-Zawahiri, or senior leaders of al-Qaeda affiliates in Yemen and the Horn of Africa? What do we do when – not if, but when – a transnational terrorist is captured who represents a serious, strategic threat and possesses important intelligence?

Perhaps the answer lies in redefining “we.” More than 90 nations lost citizens in the Sept. 11, 2001, attacks. Al-Qaeda has carried out or threatened attacks in numerous countries since then, killing and injuring hundreds of civilians worldwide. Terrorism is not merely an American issue. Not surprisingly, it cannot be addressed with a solely American solution – and that includes detention efforts.

Over the past decade, key members of the international community have taken on greater responsibility for worldwide counterterrorism efforts. This has meant increased collaboration on intelligence gathering, pursuit of terrorist supporters and their finances, and efforts to ensure that al-Qaeda does not radicalize and recruit more followers. Yet the United States has continued to carry a disproportionate burden regarding detention operations and to bear the brunt of the associated political backlash. And even while publicly bemoaning the existence of Guantanamo, some foreign officials have privately conceded that the dangerous individuals held there remain a threat and should be detained. But most were happy to see Washington shoulder that responsibility.

Rather than debating simply whether to shut Guantanamo or transfer the remaining detainees to the continental United States, we should discuss a third option. We should focus on rewriting Guantanamo’s future so it is more acceptable worldwide. We should focus, in other words, on internationalizing Guantanamo.

Transforming Guantanamo into an international prison for terrorists would require finding a broadly acceptable definition for the role of detention in modern counterterrorism efforts. It means reaching a new understanding of how the international community can share responsibility for handling suspected terrorists after capture. As regards future operations at Guantanamo, it means exploring how international forces could help oversee the facility, under a security agreement among participating nations.

This will require nations around the world to come to terms with the fact that, in the decades ahead, fighting al-Qaeda will demand a place to hold terrorists – a place like Guantanamo. That is no easy task but one that ultimately brings us closer to knowing “what’s next.”

In his testimony this month, Panetta stated the obvious. We will capture more dangerous individuals who pose a worldwide threat and need to be detained. But that should no longer be America’s responsibility. The international community should step forward to play a greater role in future detention efforts, including at Guantanamo.

The latest military commission trial at Guantánamo Bay opened the door for the defendant’s release in a few years. But the continued use of indefinite detention and lax rules on hearsay evidence still plague the system. These puts enormous pressure on defendants to plea-bargain to avoid the dangers of going to trial in a process that is tipped against them.

On Tuesday 15 February, Sudanese national Noor Uthman Muhammed pled guilty to conspiracy and providing material support for terrorism for the role he played at the Khalden training camp in Afghanistan from 1996 to 2000. The charge carried a possible life term, but under the terms of the plea agreement, secret until last week, he will be released after 34 months. In exchange, he has agreed to cooperate with the US government in the prosecution of other cases of Guantánamo detainees.

Should Noor, as he asked to be called, fail to cooperate, a 14-year sentence will be imposed. This was determined at a sentencing hearing last week before a nine-member military jury. Deciding between 10 and 14 years, they chose 14, giving him the maximum penalty.

On the one hand, the agreement is good for Noor. Infirm and suffering from tuberculosis and hepatitis B, he can likely get out of Guantánamo and back to Sudan relatively soon. On the other hand, the circumstances under which the agreement was obtained and the difficulty the defence had in presenting and challenging evidence, shows that the military commission system favours the prosecution with advantages unavailable in a US federal court.

Noor has already been held by the US government for nearly nine years. During confinement, first at Bagram prison in Afghanistan and then at Guantánamo, Noor endured abusive conditions including painful shackling, exposure to extreme hot and cold temperatures, isolated confinement, deafening music for hours on end, and forced nudity and beatings in the presence of female soldiers.

Although the commission went to great lengths at the hearing to demonstrate the guilty plea was given voluntarily, it is hard to believe the conditions and lack of access to trial for all those years did not put considerable pressure on Noor to agree to a deal. As Noor’s lead defence attorney, Howard Cabot, put it, “Nine years in a country that prides itself on the right to a speedy trial is an awfully long time to wait.”

In addition to the right to a timely trial, also central to the US justice system is the defendant’s ability to confront the witnesses against him. The military commissions’ relaxed rules on hearsay – secondhand evidence that is normally excluded from the trial – further worked to Noor’s disadvantage. During the entire proceeding, not one live witness was produced, either by the government or the defence. Every piece of testimony was a written statement read or video recording played to the jury. Although this was a sentencing proceeding and not a trial, the lax hearsay rules would still be permissible in a contested military commission trial. This differs starkly from federal court where the opportunity to crossexamine and confront witnesses is sacrosanct.

Cabot believes these hearsay restrictions had considerable impact on his ability to put forward Noor’s case. For example, the prosecutor, Lt Com Arthur L Gaston III, in an attempt to connect Noor to large-scale terrorist attacks committed against the US, introduced testimony related to Ahmed Ressam, the so-called “millennium” bomber who was intercepted from Canada with explosives on his way to Los Angeles international airport. Gaston did not produce Ressam, but rather a written summary of evidence against him.

The testimony went into great detail about the methods Ressam used, including killing dogs to test the poisons and explosives he planned to use in the plot. In a small portion of it, Ressam stated that he had been to Khalden and received basic training from Noor. Noor never denied he had trained individuals in small weapons and artillery at Khalden, but he maintained it was not in support of terrorism. Rather, according to a statement from Noor read to the jury, he was trained, and trained others, for the purpose of defending Islam. Further, he only did so for a limited time, later taking up a different job getting food, water and supplies for the camp. “I never became a member of the Taliban or al-Qaida … and I never planned or participated in any terrorist attack,” read the statement. The evidence from Ressam, which could not be contested, painted a very different picture.

Cabot said he would have welcomed the opportunity to challenge the Ressam evidence. That’s the kind of witness, Cabot said, “you want to look in the eye and crossexamine.” And assistant defence attorney, Marine Captain Christopher Kannady warned against punishing Noor for the acts of others.

In the end, though, it was not the military commission verdict but the plea agreement that settled Noor’s fate. Although largely symbolic unless Noor fails to cooperate, the sentencing hearing demonstrated how the nature and fairness of the underlying system can impact greatly a defendant’s decision to take a plea. The less fair the trial, the stronger the hand the prosecution holds.

Improvements in the military commissions since they were first established by the Bush administration in 2001 make them look on paper more like civilian courts. In reality, they are still playing with a stacked deck.

The Obama administration, ProPublica’s Dafna Linzer first reported, is about to issue an executive order that gives shape, contour and future life to indefinite detention for Guantánamo detainees. The order will provide for the continual detention of several dozen detainees – who will have access lawyers in order to periodically contest their detention.

On one level, we shouldn’t be surprised. In what has become a signature method of the Obama administration, the bad news was trotted out as an idea well ahead of time. In May of 2009, President Obama let it be known that indefinite detention was among the options that the administration would likely embrace in its efforts to close Guantánamo. Now, as their calculation may have predicted, what was once an unsavoury idea barely causes a ripple in the fabric of public opinion. Overshadowed by the continuing focus on the economy, and reflecting a growing callousness towards civil liberties issues in the “war on terror”, the public will likely greet the announcement with numbness.

But there is more to be worried about than meets the eye. The problem is not just the disturbing fact that the Obama policy perpetuates a piece of the Bush detention regime. Indefinite detention was the very heart of the Bush policy. The idea that the United States could hold individuals, refuse to classify them in any recognised legal category and thereby deny them rights, was the doorway to a host of unacceptable policies, including enhanced interrogation techniques, excessive periods of solitary confinement (apart from interrogation), disappearances to “black sites”, and most of all, the refusal to confront squarely the distinction between guilt and innocence. The several dozen individuals whom the Obama administration intends to hold are among those they believe there is insufficient evidence to convict. If the judgment of guilt is not certain, then these men cannot be tried.

Most disturbingly, since his suggestions about indefinite detention 18 months ago, Obama has barely moved in his reasoning for perpetuating the idea. It appears that the reason the administration refuses to allow trial or release for these detainees has less to do with the individuals themselves, than with the current global context. In the case of Yemen, the country of origin for a majority of the remaining detainees, the security environment is considered too unstable and could lead to the detainee’s future engagement with terrorism. Or, in the case of the general detainee population, release could eventually come, according reportedly to a government spokesperson, when “the group that the detainee is affiliated with could cease to exist”. These individuals cannot be free because they could be influenced by the environment in a way that could bring harm to the United States.

Rather than the fact of harm, we have the possibility of harm. (In this way, it is not dissimilar to the department of justice’s use of informant cases to weed out potential terrorists rather than those engaged on their own accord in terrorist activity.) And until US foreign policy sufficiently reduces that risk, the legal system must stand down.

With the announcement of indefinite detention as a policy, rather than a possibility, the United States will cross a threshold that, as torture did, takes us back to the past, a past before the introduction of trials, when guilt and innocence were decided by signs from the heavens and an appeal to God, rather than to legal processes conducted by men.

In this case, the judgment of the executive will be substituted for that of the heavens. In this new century, tribalism has come face to face with globalisation. Time and again, it seems, we are running backwards, rather than forwards.

There were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there ["Try them in federal court -- at Gitmo," Washington Forum, July 16].

Eugene R. Sullivan, a former chief judge for the U.S. Court of Appeals for the Armed Forces, and Louis J. Freeh, a former U.S. District Court judge and director of the FBI, argued that creating, by statute, a civilian district court trial at Guantanamo would provide a fair, independent and universally respected forum, in contrast to “untested and widely questioned” military commissions; deny to Khalid Sheik Mohammed and others a military forum that enhances their image as “warriors”; and avoid the “prohibitive” security costs of a trial elsewhere in the United States.

They are wrong on numerous levels.

First, the Sixth Amendment guarantees defendants a trial “before an impartial jury of the State and district wherein the crime shall have been committed.” Given the locations of the Sept. 11 crashes, this would require a jury drawn from the Southern District of New York, the Eastern District of Virginia, the Western District of Pennsylvania or the districts where the flights originated. Most if not all jurors have families, friends and co-workers who would know they were serving in a distant location. Their anonymity could not be preserved. Two “anonymous” jurors in the far less celebrated trial of the “Blind Sheikh,” Omar Abdel Rahman, were terrified to find reporters waiting at their homes after the verdict.

The prospect of long-term security presents a prohibitive personal cost to jurors and financial cost to the government, and long-term sequestration is a recipe for friction and eventual disaster. Recall the principal modern experience with it in a famous case: that of Orenthal James Simpson.

Nor is it certain that the verdict returned by a civilian jury held in military custody far from home for months would be received as fair and independent.

As to the question of civilian court vs. military commission, a civilian trial would not “uphold the rule of law,” nor would avoiding a military commission deny the defendants their self-styled status as “warriors.” The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals. Congress recognized this when it passed the 2006 Military Commissions Act to deal with Islamist terrorism; disregarding that statute is lawless. Moreover, giving those who violate the laws of war more protection than is accorded those who follow such rules turns those rules and their underlying morality on their head.

This country has tried all manner of defendants before military commissions, from the time of the Revolution through World War II. All shared one attribute: Their acts were directed at endangering this country’s survival. Those charged before such commissions do not become “warriors” simply because the forum in which they appear is styled “military.” Indeed, those who conspired to assassinate President Abraham Lincoln and others in government were tried before a military commission and hanged as war criminals, even though the Civil War was over when they acted.

Proponents of civilian trials overlook practical difficulties that arise because the accused are terrorists. The battlefield, where KSM and others were captured, does not provide the setting in which evidence can be gathered the way it is when a defendant is apprehended by civilian authorities. In civilian trials, federal rules restrict admissibility of evidence; in military commissions, the touchstone for admissibility is simply relevance and apparent reliability.

Sullivan and Freeh note that the current military commissions have had mixed results. That may be due to military courts’ unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden’s driver was not substantially blameworthy even though he bore principal responsibility for bin Laden’s physical safety and, like those who serve similar functions for organized crime bosses, had to have been among his most trusted aides. Despite the claims of Attorney General Eric Holder, civilian tribunals are not certain to render appropriately severe verdicts. Civilian courts have not returned capital verdicts against the Sept. 11 plotter Zacarias Moussaoui or those charged in connection with the East Africa embassy bombings that killed hundreds.

A more basic criticism of military commissions is that they diverge from the principal mission of the armed forces, which is to fight and win wars. And while we have had short-term success with military commissions, we need an institution that can fulfill the mandate of trying terrorists over the long term and that has the backing of government at all levels.

The long-term answer, as several have suggested, may be a court created for this purpose by Congress and perhaps presided over by Article III judges but with juries drawn from the military. That is, unfortunately, as politically unworkable now as a Guantanamo district court is practically unworkable. The current Congress won’t pass such legislation, and the current president would not sign it. In the short term, then, we have to work with the tool Congress fashioned: military commissions in Guantanamo, a remote, secure and humane location. Its courtroom facility is unparalleled anywhere on the mainland for handling highly secure data, and proceedings can be monitored from the elaborate press gallery. If we pride ourselves on being a nation of laws, we can start by applying the law we have.

Guantanamo has been at thecenter of intense political and security debates for the past decade, yet many commonly held perceptions of its detention operations and interrogations are not based upon the facts.

From the outset, Department of Defense officials characterized Guantanamo as the “least worst place” for holding al Qaeda and Taliban suspects picked up in the aftermath of Sept. 11, 2001. It was far from the battlefields of Afghanistan, where the fighting raged. It was outside the United States, making it less prone to terrorist attacks.As foreign enemy combatants held outside the country, detainees were not entitled to the same legal protections granted to American citizens. These fundamental conditions have not changed.

What has changed is that Guantanamo became vulnerable in the courts and public opinion mainly because of misperceptions.Key factors included:

c Overstated abuse allegations: Isolated incidents of abuse were portrayed falsely as common through detainees who were instructed by al Qaeda training manuals to publicize such claims. These incidents were combined with ubiquitous photos of orange-jumpsuit-clad, hooded and shackled detainees at the primitive Camp X-Ray in the first three months of 2002, leading to an inaccurate portrayal of Guantanamo.

c Confusion and conflation: Facts of detention operations and interrogations at Guantanamo were often scant in public discourse and pop culture. Torture was never condoned, nor tolerated. Waterboarding was never used there. Critics equated Guantanamo conditions to Abu Ghraib abuse some 7,000 miles away, although they were separate and unrelated.

c Cynical press coverage: Most media focused reports on a handful of abuse incidents in the early years, countless unfounded abuse claims since, relatively few hunger strikers and a sea of detainee legal challenges. Despite more than 3,000 media visits, newspaper and television reports worldwide consistently used dated Camp X-Ray orange-jumpsuit photos throughout the decade as their stock footage to depict Guantanamo, though detainees were quickly moved to modern prisons modeled after facilities in Indiana and Michigan.

c Unsustainable legal construct: Endless court challenges and negative publicity over the rights of detainees to habeas corpus culminated in three Supreme Court losses from 2004 to 2008. Holding detainees as enemy combatants under a law-of-war construct until the end of hostilities without the legal protections of either prisoners of war or criminal defendants proved untenable, in particular after Sept. 11 began to fade from the public spotlight. Lower-court proceedings showcased defense-attorney portrayals of their clients as picked up by mistake, sold for bounties, innocent goat herders, etc. while capitalizing on every government misstep.

c Inadequate transparency: Years of withholding detainee names and case files resulted in insufficient releasable information for Guantanamo’s public defense. Post-Sept. 11 government measures meant to safeguard against further attacks led to an extremely cautious approach in declassifying information, leaving little material for public education efforts.While critics stressed closure, none had viable options for alternatives. Repatriation and resettlement proved difficult because of security issues and human rights concerns in some countries.Recidivism, currently estimated at 20 percent and including al Qaeda and Taliban leadership figures, remains a major concern.

Thus, the question arises on the fate of its nearly 200 detainees still held. Simply moving them to the mainland accomplishes nothing other than creating a “Gitmo North.” As the administration acknowledged, indefinite detention would continue for 50 to 100 detainees – those too dangerous to release yet not prosecutable. The legal basis to detain enemy combatants under the law of war remains the same, meaning they can be held until the end of hostilities. Such a facility and its surrounding area would be converted into symbolic and accessible targets to home-grown terrorists, attracting massive potentially violent protests.

Local economic benefits have been overstated, as up to half of the funds would be for temporary construction projects, while most residents would not qualify to be guards.Some argue that closing Guantanamo would diminish al Qaeda recruiting while fostering good will in Muslim countries. The attacks of Sept. 11, on the USS Cole and East African U.S. embassies prove otherwise, as they all predate detention operations there. Anti-U.S. propaganda in the Middle East is fueled chiefly by the presence of American troops in the region, combined with the Israeli-Palestinian conflict. Guantanamo pales in comparison to these much broader issues.Many perceptions of Guantanamo detention operations and interrogations are not based on reality, but on a misleading narrative shaped by Guantanamo’s critics. Its reputation is undeserved, and its future should be re-examined.

Estados Unidos no solo quiere cerrar Guantánamo, lugar que nunca debería haber abierto, sino que debe cerrarlo, pues el periodo de gracia que le han dispensado sus tribunales hace ya un par de años que caducó. Primero fueron las admisiones de las demandas de los allí ilegítimamente detenidos, aceptado que su indebida privación de libertad pudiera ser revisada por los tribunales civiles norteamericanos pese a la plétora de disposiciones tan absurdas como antijurídicas que pretendían cubrir las vergüenzas que seguían a la vista de todos.
Existe, además, la sospecha de que las cosas pueden ir más allá de estas decisiones judiciales declarativas, es decir, que pueden presentarse querellas criminales o, lo que no sería mejor, demandas civiles multimillonarias por daños. En fin, no parece que los tribunales yanquis vayan a ser tan complacientes como el fiscal general de EEUU, Eric Holder, quien ha permitido que se exculpe, en un informe del verano pasado que se ha conocido ahora, a juristas como Jay Bybee y John Yoo, que diseñaron el sistema de interrogatorios mejorados (!) para la CIA, es decir, la tortura. Tampoco parece que la comunidad de seguridad esté dispuesta a saldar sus culpas.

En esta tesitura, con presos detenidos desde hace más de un quinquenio, sin cargos y por tanto sin juicio a la vista, Estados Unidos debe soltar lastre. Lo lógico sería dejarlos en libertad, pero hacer eso sería reconocer abiertamente la ilicitud de su acción de captura y confinamiento. Al socaire de la cooperación transatlántica, la misma que se dio a los vuelos de la CIA, se requiere a países europeos que acojan a presos. A España le han caído en suerte cinco. ¿Qué van a hacer el Gobierno, la policía, la fiscalía, los jueces con estos invitados? Y, lo que es más importante, ¿con qué base lo pueden hacer? Con la ley en la mano –el mejor instrumento de la democracia–, no cabe hacer otra cosa que, tan pronto pisen tierra española, eventualmente, documentarlos y, en todo caso, dejarles en libertad. No existe norma alguna, ni nacional ni internacional –si esta existiera sería contraria a la Constitución–, que habilite la imposición de la menor restricción de movimientos de estos ciudadanos extranjeros, pues no consta que hayan cometido delito alguno.
Al igual que en el caso de los vuelos de la CIA, la correspondencia entre autoridades diplomáticas, policiales y de los servicios secretos no pasa de ser papeles entrecruzados entre tales autoridades, lo que carece de valor como norma jurídica, que, repito, sería contraria a la Constitución. Los derechos fundamentales de la persona constituyen un límite infranqueable también para los tratados internacionales, aquí inexistentes. Recuérdese: nadie puede ser privado de libertad si no es por causa de delito, y aun así en determinados supuestos. No hay, pues, intercambio de notas que valga. Discreta vigilancia, como se ha anunciado, y punto. Estados Unidos, que durante tanto tiempo ha sido incapaz de imputar criminalmente a los forzados residentes guantanameros, no puede esperar que las autoridades europeas, suavizando el encierro antillano, confinen de nuevo a los inesperados huéspedes sin imputación alguna, por más que se aluda a maldad que nadie ha sido capaz de poner negro sobre blanco.
En España tampoco cabría abrir una causa penal contra nuestros invitados por cuenta ajena con los datos que las autoridades del presidio caribeño hubieran podido recabar de ellos mientras eran sometidos a toda suerte de sevicias, empezando por la indebida privación de libertad. No sería posible esa maniobra, porque el Tribunal Supremo ya la censuró y negó en su día por medio de su sentencia de 20 de junio del 2006, resolución que ya glosé en estas páginas.
En esa fecha, el alto tribunal anuló la condena de la Audiencia Nacional a un ex-preso de Guantánamo porque «desde la legitimidad de la sociedad a defenderse del terror, esta defensa solo puede llevarse a cabo desde el respeto de los valores que definen el Estado de derecho y, por tanto, sin violar lo que se afirma defender». No valieron entonces las llamadas entrevistas: encuentro entre policías españoles con presos ilegalmente detenidos y al margen de cualquier procedimiento, no solo ya válido en España, sino en cualquier país civilizado.

En fin, hacernos con nuevos huéspedes a cargo del magro peculio público podrá suponer un alivio del amigo norteamericano, podrá satisfacer evidentes necesidades humanitarias, pero, más allá de un paripé, no puede suponer limitación alguna de la libertad de acción de estos inesperados invitados. Eso sí, mientras respeten sin tacha la legalidad vigente en su nuevo y generoso país de acogida.
En fin, ningún compromiso suscrito con la Administración de Washington podrá ser hecho valer para que España someta a los recién llegados a restricción alguna. Y andémonos con cuidado, no sea que parte de la lluvia de demandas por violación de derechos humanos vaya a calar los huesos.

La décision que doit prendre le Conseil fédéral concernant l’accueil de deux Ouïgours (des Chinois musulmans), ex-détenus de Guantanamo, est un casse-tête dont la résolution sera révélatrice de ses choix diplomatiques et de l’affirmation ou non de certains de ses principes. Cette décision, pour caricaturer, irritera soit les Etats-Unis et les défenseurs des droits de l’homme, soit la Chine et les représentants des milieux économiques. En d’autres termes, le choix final pourrait être ­déterminé par l’évaluation des moindres dommages collatéraux.

Bien sûr, Berne pourrait s’en sortir par une pirouette en invoquant des problèmes techniques – le prétendu manque d’infrastructures médicales adéquates du Jura pour héberger ces détenus – pour justifier son refus final auprès de Washington. Une solution cynique mais pragmatique, qui limiterait les dégâts potentiels envers les divers acteurs de cette affaire. La Suisse n’en sortirait pas grandie, mais l’intérêt supérieur du pays ­ferait passer la pilule. Ce choix politique – recommandé par deux commissions parlementaires – impliquerait par ailleurs que Berne n’ose pas dire non à Pékin.

Dès lors la question se pose: faut-il craindre de se fâcher avec la Chine et, sinon, quelles en seraient les répercussions? Sur le premier point, la position chinoise a été tout à fait claire. Dans une lettre adressée à Berne le 18 décembre, l’ambassadeur de Chine, Dong Jinyi, a expliqué que les deux Ouïgours en question étaient des «terroristes présumés» membres d’une «organisation terroriste reconnue par le Conseil de sécurité des Nations unies». Le message se conclut ainsi: «Nous ne voulons absolument pas voir cette affaire porter atteinte aux relations Chine-Suisse».

L’affaire est embarrassante au moment où les deux pays sont engagés dans des négociations en vue d’un accord bilatéral de libre-échange. Elle l’est d’autant plus que les deux pays célèbrent ces jours-ci le 60e anniversaire de l’établissement de leurs relations diplomatiques. La décision prise à l’époque par Max Petitpierre relevait d’un certain courage à un moment où le camp occidental cherchait à ostraciser le nouveau géant communiste. La Suisse fut en effet l’un des tout premiers pays à reconnaître le régime de Mao. C’est notamment ce choix qui permet aujour­d’hui encore à la Suisse de jouir d’une excellente image en Chine.

Si la Suisse devait être le premier pays occidental à accueillir des Ouïgours de Guantanamo, il ne fait guère de doute que la Chine fera la démonstration de sa mauvaise humeur, d’autant que la situation au Xinjiang (lieu d’origine des Ouïgours) demeure sous très haute tension. Quels en seraient les répercussions concrètes? A en juger par le précédent de l’«affaire» de la place Fédérale, en 1999, lorsque le président Jiang Zemin avait déclaré que la Suisse avait perdu un ami après avoir été sifflé par des manifestants pro-Tibet, pas grand-chose. Tout au plus la Chine avait-elle retardé l’ouverture du marché du tourisme suisse à ses ressortissants. Il ne faut donc pas exagérer, comme peuvent parfois le faire les milieux d’affaires, les supposées mesures de rétorsion chinoises.

Il faut toutefois ajouter que le monde a changé depuis 1999. Nous assistons désormais à l’affirmation parfois brutale de la puissance politique chinoise. Pékin est de moins en moins disposé à recevoir des leçons de l’Occident sur des questions touchant à sa souveraineté (Tibet, Xinjiang, Taïwan) ou aux droits de l’homme. Cette nouvelle intransigeance s’est notamment traduite par des peines très lourdes infligées à des militants (Liu Xiaobo, Hu Jia, disparition de l’avocat Gao Zhisheng) que l’on pensait en partie protégés par leur notoriété en Occident. Si la Chine a pu par le passé se montrer plus flexible sur ces questions, c’est qu’elle était en position de demandeur. Maintenant qu’elle a accédé à l’OMC, obtenu les JO et l’organisation d’une Exposition universelle à Shanghai en 2010, elle est beaucoup moins sujette aux pressions extérieures.

La poursuite de la spectaculaire croissance économique chinoise se traduit par ailleurs par l’affirmation nouvelle de sa puissance politique. Pékin entend bien à présent faire entendre sa voix dans la redéfinition de l’architecture internationale. Dans le même temps, on assiste à une crispation politique de la part d’un régime qui demeure bien moins sûr de lui qu’il n’y paraît. Dans un climat économique mondial détérioré, les querelles vont grandissant sur fond de repli protectionniste. Mais l’affaire n’est pas qu’économique. Depuis quelques semaines, la notion de «clash des valeurs» fait son grand retour. Le révélateur de ce malaise a été l’annonce récente de Google de ne plus se soumettre à la censure chinoise. Pour la première fois de façon aussi spectaculaire, l’une des entreprises les plus emblématiques de la nouvelle économie refuse de se soumettre au diktat du modèle chinois de «capitalisme autoritaire». De nombreux observateurs y voient l’aube d’une confrontation inévitable entre Pékin et Washington.

C’est dans ce contexte particulier que Berne se retrouve aujourd’hui à devoir en quelque sorte choisir entre l’un et l’autre de ces deux camps sur une question justement de valeur, à savoir celui du droit d’asile accordé à deux individus jugés «non dangereux» par Washington ainsi que des experts suisses et qualifiés de «terroristes» par Pékin. Le défi est dès lors de ne pas se laisser enfermer dans une logique stérile de confrontation de type idéologique. Mais il est tout aussi nécessaire de réaffirmer aujourd’hui, sans détour, les divergences politiques qui peuvent opposer Berne et Pékin et au besoin savoir dire non aux pressions. C’est un langage que comprennent les Chinois.

Guantanamo résonne dans tous les Etats de droit comme un avertissement. C’est l’exemple d’une dérive sécuritaire totalitaire qui méprise l’ordre constitutionnel, les droits fondamentaux, l’Etat de droit, la démocratie. Guantanamo, c’est l’exemple de l’arbitraire, tant il a été démontré que les personnes qui y sont détenues ne sont le plus souvent coupables d’aucun crime. Guantanamo est une abomination qui marquera durablement du seing de l’infamie une démocratie pourtant fondatrice. La mise en place d’un tel lieu de détention est bien davantage qu’une erreur, c’est une faute et l’on prend toute la mesure de son ampleur lorsque l’on se trouve contraint d’en envisager la fermeture. Comment fermer Guantanamo? C’est un casse-tête sur lequel planche l’administration Obama depuis le premier jour et la réponse lui appartient. La question qui se pose à la Suisse porte sur l’aide qu’elle peut apporter à ce processus de retour au droit et à la démocratie. C’est dans ce processus que s’inscrit notamment l’accueil de deux détenus ouïgours présenté par Le Temps du 9 janvier comme «le dilemme suisse», comme s’il s’agissait simplement d’un choix dans nos relations internationales entre froisser les Etats-Unis en les refusant ou la Chine en les accueillant.

Le choix n’est pas là. Ce que le Conseil fédéral a salué dans la première décision du mandat du président Obama, c’est la condamnation d’une situation qui viole gravement les Conventions de Genève, dont la Suisse est dépositaire, et plus largement toutes les garanties fondamentales en matière de droits de l’homme. Dès lors que les deux Ouïgours sont innocents de tout acte criminel, leur détention ne peut se concevoir. Ils doivent en conséquence être libérés. En bonne logique, ils devraient dès lors pouvoir retourner chez eux mais l’on sait qu’ils seront alors persécutés en Chine, comme les autres membres de leur groupe. Le Xinjiang est en effet une région sous étroite surveillance politique de la part de Pékin. Les émeutes de 2009 y résonnent encore, de même que les procès des émeutiers pour lesquels les condamnations à mort tombent dans un élan répressif dont l’arbitraire ne le cède en rien à Guantanamo.

C’est vrai, ces deux Ouïgours devraient pouvoir rentrer chez eux. Encore faut-il rappeler que le premier a quitté un pays dans lequel on torture son peuple et son frère ensuite pour le retrouver. Leur but était de fuir l’oppression pour s’installer dans un pays libre. La situation des Ouïgours en Chine leur permet incontestablement de demander l’asile en Suisse car ils ont droit au statut de réfugié (art. 3 LAsi), garanti à toute personne qui dans son Etat d’origine ou dans le pays de sa dernière résidence, est exposée à de sérieux préjudices ou craint à juste titre de l’être en raison de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social déterminé ou de ses opinions politiques. Sont notamment considérées comme de sérieux préjudices la mise en danger de la vie, de l’intégrité corporelle ou de la liberté, de même que les mesures qui entraînent une pression psychique insupportable. En l’espèce, ces deux frères sont exposés à des persécutions dans leur Etat d’origine, la Chine, comme dans le pays de leur dernière résidence, les Etats-Unis, qui les ont détenus sans droit si longtemps.

Il est vrai que l’on prétend que certains anciens détenus de Guantanamo auraient rejoint des groupes terroristes. Sans doute espérait-on que ces personnes, détenues illégalement durant des années dans les pires conditions, auraient la bonté de remercier leurs geôliers en sortant: «Merci pour l’accueil, nous reviendrons avec plaisir et mes hommages à Madame…» Guantanamo est aussi une aberration politique car c’est une usine à haine. Ceux qui n’avaient aucun motif d’en vouloir aux Etats-Unis ou plus généralement à l’Occident en y entrant, en ont une multitude en en sortant! Dans la situation de stigmatisés qui est la leur à leur sortie, où irons-nous si le seul accueil qu’ils puissent espérer est celui de groupes terroristes? Que ferons-nous si nous leur montrons que la démocratie les traite plus mal encore que la dictature?

Le sentiment d’humanité ne peut que nous mener à l’empathie. L’accueil de ces hommes est le seul moyen de notre propre rédemption et de notre sécurité. Nous avons là une dernière possibilité de leur montrer que la démocratie est le respect des libertés de chacun, que l’Etat de droit est la garantie de leurs droits fondamentaux, que leur sécurité parmi nous est la nôtre. Si nous pensons réellement que notre choix est seulement entre froisser les Etats-Unis ou la Chine, nous sommes vraiment tombés bien bas. Souvenons-nous que leur choix à eux est entre la liberté chez nous ou la persécution ailleurs et demandons-nous ce que nous aurions gagné à les rejeter vers des groupes terroristes.

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court’s intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.

Many commentators have complained about this state of affairs and the contradictory and incoherent body of law it is producing and have urged the political branches to enact legislation to create a uniform and democratically legitimate detention policy.

Now a more important voice has joined the call for legislative reform.

Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules — a person with as holistic and in-the-weeds an understanding of the issues as is possible.

Last week, in ruling on the merits of a detainee’s case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that “go to the heart of our judicial system.”

“It is unfortunate,” he said in an oral opinion from the bench, “that the Legislative Branch of our government and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases.” While allowing that the various judges were “working very hard and in good faith,” he lamented that “we have different rules and procedures being used by the judges,” as well as “different rules of evidence” and “a difference in substantive law.” For Judge Hogan, it all “highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned.”

Congress has avoided these issues for a number of reasons. Initially, it was a combination of the Bush administration’s failure to seek congressional help and lawmakers’ natural inclination to avoid taking responsibility for hard decisions for which they might later be held accountable. More recently, the Obama administration has been loath to spend any more political capital than necessary in cleaning up what it views as its predecessor’s messes. Instead of dealing with detention policy proactively, it has largely adopted the Bush approach of grinding out detention policy in the courts. Ironically, the president’s political base seems to prefer his adoption of the Bush approach — an approach liberals previously decried — to any effort to write detention rules and limitations into statutory law.

As Judge Hogan made clear, this is a bad way to craft policy. It generates uncertainty about the lawful parameters of detentions, ensures longer adjudication times and lessens accountability for difficult decisions.

The Guantanamo closure process and the appropriations process for the new terrorist detention facility in Illinois offer a perfect opportunity to correct this long-festering problem. The administration will have to work with Congress, if only to permit Obama to move detainees to the new site. Yet if legislation stops there, the political branches can congratulate themselves only on moving the location of terrorist detention and not on strengthening and clarifying detention policy.

By contrast, if Congress and the administration were inclined to perform their constitutional duties, they could draw on eight years of judicial decisions, legal briefs and scholarship to craft clear, stable rules. There are myriad issues for a responsible Congress to address, but at a minimum it should offer a clear definition of who can be detained, a coherent set of evidentiary and procedural rules to determine who fits the definition of an enemy, and guidance concerning the scope of the government’s obligation to disclose evidence to detainees’ lawyers.

The goal, simply put, should be to replace what Judge Hogan called “procedures drawn up by the court, and principally [by] myself . . . in a new venue that has been untested” with one that carries the legislature’s stamp and the president’s signature, and that answers some of the hard policy questions our political institutions have punted to the courts. The courts’ job, in such a world, would be to adjudicate detainee cases, rather than to write conflicting rules that they then have to apply.

The decision by President Obama to move 100 detainees from Guantánamo Bay to the Thomson Correctional Centre in Illinois has drawn criticism from across the spectrum. But amid the controversy, the fact that one of the biggest barriers to closure of Guantánamo remains in place has been largely ignored.

Of the estimated 110 detainees who will be neither transferred to Thomson nor moved to New York to stand trial for the 9/11 attacks, many are stateless. These men remain in detention not because they are awaiting trial, but because the US authorities are unable to return them to their country of origin. Indeed, many had already been cleared for release well before President Obama’s pledge to close Guantánamo.

For some, progress has been made. After months of tortuous negotiation in each case, Bermuda and Palau agreed this year to take almost all of the Chinese Uyghurs left in Guantánamo. Others are not so lucky. Detainees from Algeria, Azerbaijan, Egypt, Libya, Russia, Syria, Tajikistan, Tunisia and Uzbekistan remain at Guantánamo because their country of origin either threatens their safety or refuses to recognise them as citizens because of their association with the facility. Without securing reliable guarantees that they will not be persecuted or tortured on repatriation, the US cannot release them.

And then there are those – such as Maher el Falesteny – whose countries of origin refuse to recognise their citizenship. Born in Gaza, Maher moved to Jordan in his 20s. In the summer of 2001, he attempted to enter Pakistan through Afghanistan because he had heard he could obtain papers there to allow him to resettle in Europe. When the bombing began, Maher was captured and sold to the Northern Alliance, who eventually passed him on to the US forces.

At his hearing, Maher was cleared after evidence suggested he had not engaged in combat and did not even know how to use a weapon. That was three years ago. Neither Jordan nor Israel – the two countries with whom he has a connection – will agree to Maher’s return.

His case is typical. Unable to return to their country of origin and unlikely to be resettled in third countries, the only options for Guantánamo’s stateless are continued detention or release in the US. So the restatement this week that “the president has no intention of releasing any detainees in the United States” is a bitter blow.

In that one sentence, the inherent contradiction of Obama’s position is made clear. Publicly committed to closing Guantánamo on the one hand, unwilling to take the necessary steps on the other, Obama is stuck.

Closure of Guantánamo – quite apart from the US’s human rights obligations – requires the release of these innocent stateless detainees on US soil.

It’s been a busy summer at the Guantánamo Bay detention centre. The joint task force in charge of the 226 remaining detainees is spending about $440,000 to expand the recreation yards at Camp 6. At nearby Camp 4, which offers communal living for the most “compliant” captives, the soccer yard is being enlarged. At Camp 5, a maximum-security facility, a $73,000 classroom is under construction. In March, the task force added art classes to the thrice-weekly instruction it offers in Arabic, Pashtu and English, courtesy of the US taxpayer.

Though President Obama vowed on his second day in office to close the detention centre within a year, Gitmo’s officers say they intend to continue spending previously budgeted funds to improve life at the centre until the last detainee leaves. “It’s business as usual around here,” the task force’s deputy commander, Brigadier General Rafael O’Ferrall, told me two weeks ago during one of the official tours that Gitmo offers outsiders.

The point of the tour is to show that Gitmo, which Obama called a “stain” on America’s reputation, has become a model, if somewhat surreal, detention centre. And therefore that closing it and relocating its inmates is a largely empty political gesture that makes little sense.

My hosts would never dare publicly challenge their commander in chief’s orders. But they clearly believe that Gitmo no longer deserves to be seen as a symbol of human rights abuses. “This place is synonymous with military abuse, and it’s just not fair,” said Rear Admiral Thomas Copeman III, the task force’s commander.

Officers at Gitmo are eager to distance themselves from the “enhanced interrogation techniques” that senior Bush administration officials approved soon after 9/11. “No one was ever waterboarded at Gitmo,” said Army Colonel Bruce E Vargo, commander of the Joint Detention Group.

Although it’s true that a 2005 Pentagon report concluded, after examining 26 complaints from FBI agents involving a small portion of more than 24,000 interrogations at Gitmo, that a few “high-value detainees” had been subjected to treatment that was “degrading and abusive”, it “did not rise to the level of prohibited inhumane treatment” or torture. Furthermore, those techniques – such as loud music, sleep deprivation, temperature manipulation and prolonged shackling – ended long ago at Gitmo, officers say. Since 2004, interrogation methods have adhered to the Army Field Manual, said Paul Rester, the Pentagon official in charge of interrogations: “Loud music has no place in my world.”

Officials are sparing little effort or expense to improve Gitmo. They provide captives with prayer rugs, beads, caps and Qur’ans in their native languages. Arrows point toward Mecca. The centre spends about $4m a year offering detainees a choice of six different halal meals a day. The kitchen prepares two Islamic “feast” meals a week and offers fresh food – such as yogurt, veggie-burger patties with fresh garlic and onion and scrambled eggs and waffles.

In fact, obesity is increasingly a problem, one Navy doctor said. He knows, because the detainees make roughly 7,800 visits a year to the medical centre to receive state-of-the-art care. That includes colonoscopies for “age-appropriate” detainees; 25 have been performed so far. The medical centre has one staff member for every two detainees

Hunger strikes are allowed, but only along with “voluntary force-feeding” – a phrase admittedly worthy of Orwell. Each day, most of the hunger strikers (about 18% of the detainees) line up for Ensure nutritional supplements. They ingest the supplements not through the mouth but through the nostril, via a yellow, spaghetti-size tube lubricated with olive oil. (Butter pecan is the most popular of the five available flavours, the doctor said.) Of course, those who don’t “volunteer” are shackled and force-fed anyway. “They have a right to protest, and we have an obligation to keep them alive and healthy while they do so,” Copeman explained.

Detainees are also screened for a variety of illnesses – diphtheria, tuberculosis, flu and HIV. “This place embodies the best of what we do as Americans,” the Navy doctor told me, without a trace of irony. Are the detainees grateful? “Some are, some aren’t,” he said. But like his clientele back in California, “most detainees don’t want to die.”

Still, some clearly do: There have been five documented suicides so far at Gitmo and many more unsuccessful attempts. The latest – Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni held here since 2002 – killed himself in June, apparently by hoarding pills and downing them all at once. (An internal investigation is ongoing.) Depression and other mental ailments among detainees are common, doctors acknowledged.

So Gitmo continues to expand its “intellectual stimulation programme”: a library of more than 15,000 books, magazines, puzzles, electronic games and newspapers, as well as satellite TV and more than 315 movies on DVD.

Gitmo’s “compliant” detainees have access to recreational activity for as much as 20 hours a day – including soccer, basketball, foosball, ping-pong and gardening. “Noncompliant” detainees are confined to individual cells, about 10 feet long by 8 feet wide, for 22 hours a day, with two hours of daily recreation. That’s an hour more than most civilian prisoners get in American maximum-security prisons, officers pointed out – but then, American civilian prisoners have been tried and convicted of crimes.

This is the real problem with Gitmo – the fact that most of the detainees have not been charged with terrorism or any other crime. Satellite TV is all well and good, but not if you’re being held indefinitely without trial.

Ending the detainees’ legal limbo and ensuring them due process is far more important than closing down the prison they’re being held in. Yet there is little difference between Obama and his predecessor on some of the key due-process issues. Not only has Obama embraced George Bush’s notion of military commissions to try some detainees, with ostensibly bolstered rights for the defendants, but he has endorsed Bush’s position on “renditions” to countries with suspect human rights records.

And he agrees with Bush on preventive detention for a “fifth category” of detainee: captives who cannot be prosecuted by a civilian court or even by a military commission because of torture-tainted evidence or the need to protect intelligence sources and methods, but who “pose a clear danger to the American people“, as Obama puts it, and may be too dangerous to release. It is unclear how many detainees fall into this category.

While the administration ponders the detainees’ legal fate, it seems pointless to spend more money and energy moving them to “Gitmo North” – maximum-security prisons in the United States where they may be far more harshly treated.

It’s time for the Obama administration to acknowledge that Gitmo, or another centre like it, will be needed as long as the war on terrorism – no matter what our commander in chief calls it – endures. But to ensure that such places do not become legal black holes, detainees should be assured of some kind of periodic, independent review of the allegations against them. They should have not only decent physical treatment but the legal right to challenge their detention in a way that does not jeopardise intelligence sources and methods.

Several legal experts have proposed legal compromises that would authorise preventive detention for terrorism suspects but with bolstered rights and a guaranteed, periodic, impartial review of the allegations that led to their detention. These schemes may not be perfect. But they may be the most effective way to protect American values while we continue fighting a war that we cannot afford to abandon.

Earley in 2002, Eric Holder, then a former deputy attorney general, said on CNN that the detainees being held at Guantánamo Bay were “not, in fact, people entitled to the protection of the Geneva Convention,” particularly “given the way in which they have conducted themselves.”

Six years later, declaring that “Guantánamo Bay is an international embarrassment,” Mr. Holder said, “I never thought I would see the day when … the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.”

So what changed?

A lot of things, of course, but most of all, our national political climate. Reeling from the attacks of Sept. 11, 2001, many on the front lines of the war against terrorism felt a sense of fear and urgency that, years later, it’s hard for some to recall. Now, the attacks receding into the past, a lot of us see things in a different light.

Certainly Mr. Holder, now the attorney general, does. Last week he announced the appointment of a career prosecutor, John Durham, to review a dozen or so cases of abuses inflicted upon detainees by Central Intelligence Agency employees and contractors in the course of carrying out “enhanced interrogation” (which they had been ordered to do, and which had been authorized by the Justice Department) and to determine whether to initiate a criminal investigation.

Mr. Holder doesn’t seem concerned that each of these cases was exhaustively reviewed, beginning in 2005, by career prosecutors under the supervision of the United States attorney for the Eastern District of Virginia. Those men had access to the complete, unredacted report of the agency’s inspector general, an expurgated version of which was released on Monday. Yet these prosecutors recommended against criminal charges in all but one case. (That exception involved a contractor named David Passaro, who had assaulted a prisoner with a flashlight and kicked him in the groin, shortly after which the prisoner died. Mr. Passaro was convicted of assault and sentenced to eight years in prison.)

Mr. Holder’s decision, then, implies that justice wasn’t done five years ago probably because high-level officials in the George W. Bush administration put their thumbs on the scale of justice. This seems unlikely. The prosecutors in Virginia were well experienced in dealing with classified intelligence matters, as most of the federal intelligence agencies are in their district. They have a reputation for being hardheaded and unforgiving of C.I.A. transgressions.

Lacking reliable witnesses or forensic evidence, they made the only call they could have made: not to prosecute. In our nation of laws, that’s exactly the way you want government prosecutors to behave. And there is no indication that any of them has complained about being pressured to decide against criminal charges. If any new information has come out about these cases, any complaints about undue influence or any new witnesses, Mr. Holder hasn’t mentioned it. The prosecutors in this case had to abide by the Justice Department’s ruling, in August 2002, that no agency interrogator would face prosecution for exceeding the guidelines as long as he acted in “good faith” and didn’t have “the specific intent to inflict severe pain or suffering.” Not an easy distinction to make, surely, when the work you’re told to do seems to be designed precisely to inflict pain and suffering.

Now imagine that you’re a C.I.A. interrogator in some dank “black site” prison, facing a terrorist you honestly believe had something to do with the attack that killed 3,000 of your fellow Americans and might very well know about the next one. You’re under extreme pressure to extract information from the guy.

And the guidance you’ve been given from Washington is maddeningly illogical. “Walling” (slamming a prisoner into a wall) is legal, but not revving a power drill near his head. “Cramped confinement” — locking someone in a dark box for 18 hours a day — or depriving him of sleep for 180 hours is O.K., but firing a gun in the next room is not. Waterboarding a prisoner is legal, but blowing cigar smoke in his face may be a crime.

This was the murky world in which these interrogators operated. No jury in America would have convicted them at the time they were being investigated. Not even close. Mr. Holder’s decision, then, raises fundamental questions of fairness. Once the Justice Department declined to prosecute five years ago, the misconduct cases were sent back to the Central Intelligence Agency to handle. The agency decided to take internal disciplinary action. The employees and contractors in question — having been assured by their employer that they would no longer be facing prosecution — presumably accepted the administrative sanctions, relying on the Justice Department decision to end the criminal inquiry.

For the government now to turn around and prosecute them without any significant new facts coming to light would be, legal experts tell me, a violation of the principle of estoppel. To a nonlawyer, it sure seems wrong. And you can be sure that any decent defense lawyer is going to raise this issue if there is a trial — particularly if the government decides to use admissions that might have been made during the agency’s administrative hearings.

Mr. Holder said in April that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” He has also made it clear that he won’t be going after any high-level officials who approved the waterboarding of “high-value detainees,” including Dick Cheney, George Tenet, John Ashcroft and Colin Powell. He won’t be prosecuting anyone who issued the “enhanced interrogation” instructions.

Certainly nobody in the Justice Department has to worry. While Attorney General Holder pushed hard for the release of the C.I.A. inspector general’s report, which contained a lot of highly classified information (along with gruesome details) — he still hasn’t published the findings of his own Office of Professional Responsibility on the “torture memos” that were written by the Bush Justice Department’s Office of Legal Counsel. If that newer report is critical of the legal competence of top lawyers at Justice who authorized the torture program in the first place, wouldn’t it have some bearing on Mr. Durham’s investigation?

Yet it seems that Mr. Holder has instructed Mr. Durham to focus only on whether any agency employees or contractors exceeded the authorized guidelines — to go after the “bad apples”: those at the bottom of the food chain who carried out these orders in wartime and may have violated an incoherent set of rules that made as little sense to them in the field six or seven years ago as it does to us now. This doesn’t look much like justice; it looks like politics. This is scarcely different from what the Bush administration did after the Abu Ghraib prisoner-abuse scandal, scapegoating only low-level military police officers.

Nothing will change for the better: President Obama has, fortunately, already renounced torture. We’ll learn nothing from this.

The process that Mr. Holder has unleashed threatens to undermine one of the basic principles of our government. For a new administration to repudiate a consequential legal decision in an individual case made by the previous administration serves to delegitimize our government itself, which is, after, all premised upon institutional continuity.

Whatever Mr. Holder’s motive for reopening these cases — whether a well-intentioned desire to provide the American people with the “reckoning” for the “abusive and unlawful practices in the ‘war on terror’ ” that he demanded last year, or a more cynical political calculation — the consequences will be grievous.

Disappointment has rippled through the ranks of Obama supporters in recent weeks, with the reviving of Guantánamo military courts and other backtracking in the War on Terror. More worrying still, in Afghanistan, Bagram Air Force Base has become Guantánamo’s evil twin sister — and a bloated twin at that, with a new $50 million prison bringing the number of inmates to more than 1,500, none of whom has ever caught sight of a lawyer or a legal right.

The Obama Administration has supported the Pentagon’s regressive Bagram policy, but this week may have witnessed the first sign of daylight in a very dark secret jail. The charity Reprieve had planned this week to file suit in Washington on behalf of an illiterate Afghan shepherd who had been locked up in Bagram for ten months without charges. But by yesterday he was expected to be free.

Captain Kirk Black, of the US Army, is the hero of the piece. He is a Swat team police officer in civilian life, mobilised into the military. I met him in Guantánamo in 2006; I was representing prisoners and he was guarding them. He was reassigned to Ghazni, Afghanistan, where his job included meeting the local shura council and trying to resolve their complaints.

According to Captain Black, Gul Khan was an innocent sheep farmer who had been swept up by the US military. They mistakenly thought he was Qari Idris, a Taleban leader. An American helicopter swooped down on Mr Khan, guns blazing; he was beaten, arrested and then banged up in Bagram.

The Obama Administration had two choices with people such as Gul Khan: one is to replicate Guantánamo. We can continue to ignore our 220-year commitment to due process and hope that the military eventually straightens out its own mistakes. But the extraordinary and catastrophic error rate in Guantánamo Bay is now clear, more than seven years on.

Certainly, the military has proven incapable of sorting the al-Qaeda wheat from the bystanding chaff. These are the figures: of 779 prisoners held to date, 550 have been released. After seven years, the remaining 229 should have been whittled down to the very worst “enemy combatants”: yet of the 33 men whose federal cases have been resolved so far, judges have ruled that an embarrassing 28 are entirely innocent. An 85 per cent error rate is not good enough even for government work. Meanwhile, the mere mention of Guantánamo inspires anger around the world — anger at our hypocrisy, for preaching law and practising lawlessness.

Matters have been proceeding no better in Bagram. In locking up Mr Khan without rights, Captain Black feared that the US merely managed to alienate the local population and amuse the real Qari Idris. By refusing to respect the rule of law, we have made life more dangerous for soldiers in Afghanistan, and minimised our chance of encouraging true change there.

The second choice is that we could try the programme that Captain Black proposed to his superior officers. He suggested that he ask the shura council to identify anyone who seemed to be the victim of an injustice. He would then — as in the case of Mr Khan — contact us at Reprieve. With no cost to the Government, we would secure pro bono assistance for the prisoner, and make a submission to the authorities at Bagram. Sometimes this would resolve the case. Sometimes it would not — in which case we would file a habeas corpus petition in America, again at no cost to the Government or the prisoner.

Captain Black’s offer could help to salvage America’s reputation, and perhaps truly win some hearts and minds. The per capita annual income of an Afghan is roughly $400: if he chose to give up eating, Mr Khan could hire a major US law firm for about an hour a year. Captain Black could promise free legal assistance to those who believe they have been treated unfairly. He believes — and who could honestly disagree with him? — that his work would do more for the safety of his fellow soldiers than wielding a gun.

The military’s response was to tell Captain Black that he was forbidden from doing anything further on the case, or to comment on it. The hero was muzzled. It seemed as if the only recourse was to challenge Mr Khan’s detention in the US courts.

But rather than simply lock horns with the Government in court, we wanted to give the Obama Administration an opportunity to do the right thing. After weeks of silence, on Wednesday our patience ran thin. A colleague was in the process of delivering the lawsuit to the Washington court when the call came — Mr Khan would be released to the care of the Red Cross the next morning.

Conceding an error in one case does not change a national policy — for either America or the UK. Captain Black’s offer still stands: does the Obama Administration have the courage to seek true change? Will his British allies agree to a similar plan in Helmand province? Or should we expect Afghanistan to be forever bound in the miseries of Bagram, Guantánamo’s evil twin?

As the Obama administration and Congress try to forge a legal framework for detaining suspected terrorists, they might want to take a close look at what’s happening at the federal district courthouse just a short walk down Pennsylvania Avenue from both the White House and the Capitol.

Trial judges there have quietly decided 31 of some 200 cases brought by Guantánamo inmates seeking freedom. Dossier by dossier, the jurists have answered the core questions that policy experts have been addressing in theory: When can the president place someone in preventive detention, and how solid does the evidence need to be?

President Obama, like George W. Bush before him, has claimed the power to detain not only Qaeda and Taliban members, but also those who “support” them. Last year the Supreme Court ruled that the courts can scrutinize these detention decisions and overturn them if they are invalid. But the court didn’t say exactly what a valid detention looks like, and Congress hasn’t stepped in to make it clear.

Thus the federal judges in Washington have had to develop their own guidelines — functioning, in essence, as the country’s national security court.

A close examination of the decisions shows that some of the fears about sending terrorism cases to civilian courts have not been realized. The judges haven’t been particularly hard on the government, holding it to a low standard of proof: If more than half the evidence tips in the government’s favor, then the detainee stays put — a far lower bar than “beyond a reasonable doubt.” The judges have also admitted hearsay evidence, and they’ve sealed courtrooms to protect government secrecy.

Yet despite these allowances, the government has not fared well. Twenty-six detainees have won their lawsuits, known as habeas petitions, while five have lost. So far, the Obama administration has filed just one appeal.

These initial judgments may not be typical, because they involved relatively low-level suspects. But they offer the first tangible indication of what members of the third branch of government believe it takes to make preventive detention legal.

While the federal trial judges are working largely without guidance, the Supreme Court did offer some clues in its decision on a 2004 challenge by Yaser Hamdi, an American accused by the Bush administration of fighting the United States in Afghanistan. The justices said the situation in which he was captured was enough like a classic battlefield that detention without charge was justified until the end of hostilities, as is typical in wartime.

But the fight against terrorism won’t have a “clear terminal point,” as President Obama said recently, and many of the detainees weren’t captured on an obvious battlefield. The president says he can detain not only anyone who contributed to the 9/11 attacks, but also people “who were part of, or substantially supported, Taliban or Al Qaeda forces or associated forces that are engaged in hostilities against the United States.” The habeas suits have opened this claim to dispute. Some judges have pushed back at President Obama’s assertion of power, particularly when assessing the concept of “supporting” the enemy.

In the case of Ghaleb Nassar al-Bihani, a Yemeni being held at Guantánamo Bay, Judge Richard Leon agreed with the government that simply cooking meals for the Taliban was “more than sufficient ‘support’ ” of the enemy to justify his detention. Yet Judge Gladys Kessler ordered another Yemeni, Ali bin Ali Ahmed, freed despite the government’s claim that he’d stayed at a suspect guesthouse and “traveled … in the company of terrorist fighters fleeing the battlefield.”

Another judge, Reggie Walton, who is handling the challenges of more than a dozen men, defined “substantial support” as membership in “the ‘armed forces’ of an enemy organization.” Judge John Bates scrapped the “substantial support” concept altogether, which he said comes from the world of criminal law.

Perhaps the sharpest curb on presidential authority came from Judge Ellen Segal Huvelle, who ruled in March that even if a Taliban fighter named Yasim Muhammed Basardah had deserved detention when captured, he now deserved freedom because he had informed on other detainees and “any ties with the enemy have been severed.”

The judges have been more accommodating of the government on technical matters, including the protection of national security secrets. All have routinely concealed important facts — sometimes even the very basis for deciding to keep someone locked up — despite the principle that American courts should be open.

That’s what happened in the case of Moath Hamza Ahmed al-Alwi, a Yemeni whose lawyer insisted he had traveled to Afghanistan to fight in its civil war, not against the United States, and was “easy prey for locals who were eager to hand over anyone they could find in return for American rewards.” Judge Leon rejected the argument, saying there was “more than ample evidence” of Mr. Alwi’s affiliation with America’s enemies, but that evidence isn’t revealed in the unclassified version of the judge’s decision released to the public.

In the case of six Algerian men arrested in Bosnia, Judge Leon ruled in favor of five because the evidence that they had planned to travel to Afghanistan to take up arms against the United States was unreliable. But the judge decided against the sixth man because of other “credible and reliable” evidence that he kept secret.

The judges have also overlooked technical imperfections in the government’s evidence, admitting anonymous and other unverifiable information. One government lawyer explained that military and intelligence officers aren’t accustomed to following the “finer points” of evidence rules, and the court doesn’t appear to expect them to be: in no case has a judge decided against the government merely because its evidence lacked proper form, as far as the publicly available records show.

The judges were more demanding when it came to interpreting the substance of the government’s evidence. In the case of Mr. Ahmed, Judge Kessler agreed to consider hearsay “because of the exigencies of the circumstances.” But she eventually ruled that he should be released because the accuracy of the evidence was “hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said.”

The trial judges have also rejected much of the intelligence community’s “mosaic theory,” which calls for interpreting minor facts to suggest a greater threat. Judge Kessler, for example, refused to infer that Mr. Ahmed was an enemy fighter simply based on a “web of statements” that he had associated with enemy fighters.

She acknowledged that the mosaic approach “is a common and well-established mode of analysis in the intelligence community,” but that the legal system required more specific evidence. Likewise, in January Judge Leon ordered the release of Mohammed el- Gharani, a citizen of Chad, after dismissing the main evidence against him: contradictory statements from two detainees whose credibility the government itself had “directly called into question.”

In the absence of guidelines from Congress and the president for evaluating preventive detention cases, these judges have succeeded in coming up with their own, individual approaches. Yet whenever ground rules seem ad hoc, people worry about fairness — is the man in the next courtroom getting a better shake? One step toward assuring the public that justice will be uniform is to establish clear standards.

At the top of the list, the government could clearly state what makes a person subject to indefinite detention by the president. Is “supporting” the enemy enough? If so, what exactly is “support?” And, once a judge has concluded that someone has been unjustifiably detained, what is the president required to do?

Seventeen of the 26 detainees who’ve been cleared for release by judges remain in custody. President Obama has given mixed signals on how he views the issue. He has resisted a judge’s order to release immediately 13 Chinese Uighurs, saying that the courts can’t override the president’s discretion to decide when detainees will be freed. Yet that position contrasts sharply with his message in a recent televised speech, when he said he accepted judges’ rulings that certain prisoners should be released. “The courts have spoken,” Mr. Obama said. “We must abide by these rulings.”

But as these cases show, neither the guidelines for deciding the cases nor the consequences of the decisions are quite so clear.

Like his fellow prisoners at Guantanamo Bay, Kuwaiti detainee Fayiz Mohammed Ahmed al-Kandari hoped that President Obama’s election would finally bring justice. Judges, not political appointees, would prevail and restore the rule of law.

Unfortunately, nothing seems to have changed. The Obama administration is reportedly considering an executive order that would “reassert presidential authority to incarcerate terrorism suspects indefinitely,” and the situation at the prison itself is worsening.

Fayiz, who has been my client for about 10 months, has been confined at Guantanamo for more than seven years. He has been subjected to harsh treatment and “enhanced interrogation techniques,” resulting in physical and psychological pain.

Although most guards have continued to act in a professional manner since Obama signed an executive order directing Guantanamo’s closure, Fayiz reports that a small number of military guards have begun to punish any detainee resistance or infraction, even minor ones such as talking back or hanging towels in the wrong location. The special unit of guards known as the Immediate Reaction Force — whom the cell-block guards call for assistance — has increased its number of bruising “cell extractions,” he says; almost every day, a detainee is forcibly removed from his cell as the guards show the prisoners who is in charge. Fayiz was extracted from his cell three times in a 10-day period this spring.

Meanwhile, pictures, videos and even Fayiz’s prayer rug and cap have been taken recently (though since returned) because Fayiz refused to shower in front of guards. While he once wore white prison clothing, the color reserved for compliant detainees, Fayiz was given an orange jumpsuit (reserved for noncompliant detainees) in March.

According to Fayiz, the “human” guards — those who have typically shown respect for the prisoners — have been warned to stop any interaction with detainees. A few guards who have been more aggressive toward the prisoners have been promising detainees “a farewell to remember,” Fayiz told me ruefully this spring.

Fayiz was captured by the Northern Alliance in 2001 and probably sold to the American forces in Afghanistan. At first he believed that he would be released because of his circumstances — he was doing charity work in an impoverished nation to fulfill his religious duties. Nonetheless, Fayiz has been held for nearly eight years at various locations and suffered harsh interrogations. One such session left him with broken ribs and extensive bruises.

Despite all that’s happened to him, Fayiz is at times upbeat. His sense of humor shows as he describes his ordeal, which included “accommodations” in Afghanistan that he rated as “five dark stars.” Threats, including with weapons, were common, as were beatings with objects such as chains and plastic hoses.

Fayiz has told me about arriving at a U.S.-controlled prison overseas where he was welcomed with an “orientation party” — guards kicked him and beat his back with a chain. A doctor later inquired about the bruising on his back in the shape of chain links. The doctor asked through an Arabic translator how it happened. Fayiz responded, “How do you think?” An American official in the room then made a call on his cellphone: “We are seeing too much bruising,” the official said. “Go back to the traditional way.”

Sometime in May 2002, Fayiz told me, he was drugged, his ears were plugged, he was diapered and a sandbag was shoved over his head. He was hustled into an aircraft, where he was short-shackled to the deck before a rough takeoff. Many hours later, he arrived at Guantanamo, his home to this day.

At Guantanamo, Fayiz reports, he was occasionally short-shackled to the floor of the interrogation room, sometimes for as long as 36 hours. It’s painful to hear him describe watching hours pass on the clock on the wall as water was thrown on his shackled body or barking dogs brought into the room. The combination of blaring music and the chill from air conditioning turned up high heightened his pain.

When international media attention on Guantanamo grew, such “enhanced” interrogation techniques stopped. But since Obama pledged to close the prison, cell extractions, slurs and petty persecutions have increased. In some cases, the guards are reacting to antagonism from the detainees. But some guards have also become more aggressive toward the prisoners and even read their mail.

Guantanamo has become a dark symbol of the standard of justice the United States has meted out in the “global war on terror.” Protecting American lives is paramount, but it is not true that we can be safe only by ignoring our country’s values and imprisoning people for the better part of a decade without their legal rights.

Each time I travel to Guantanamo Bay to visit Fayiz, his first question is, “Have you found justice for me today?” This leads to an awkward hesitation.

“Unfortunately, Fayiz,” I tell him, “I have no justice today.”

Abdullah Ghulam Rasoul and Said Ali al-Shihri may be the two best arguments for why releasing detainees from Guantánamo Bay poses a real risk to America. Mr. Rasoul, who was transferred to Afghanistan in 2007 and then released by the Kabul government, is now the commander of operations for the Taliban in southern Afghanistan. Mr. Shihri, sent back to his native Saudi Arabia in 2007, is now a leader of Al Qaeda’s affiliate in Yemen.

Are these two men exceptional cases, or are they emblematic of a much larger problem of dangerous terrorists who, if released, will “return to the battlefield”? To help answer that question, a Pentagon report made public on Tuesday concluded that 74 of the 534 men who have been freed from Guantánamo were “confirmed or suspected of re-engaging in terrorist activities.” This is a recidivism rate of around 14 percent, which was up from the Pentagon’s previous estimate in January of 11 percent.

But are things this bad? While we must of course be careful about who is released, these numbers are very likely inflated. This is in part because the Pentagon includes on the list any released prisoner who is either “confirmed” or just “suspected” to have engaged in terrorism anywhere in the world, whether those actions were directed at the United States or not. And, bizarrely, the Defense Department has in the past even lumped into the recidivist category former prisoners who have done no more than criticize the United States after their release.

Because of national security concerns, the new report does not include the names of the majority of those believed to have engaged in violence — 45 of the 74. There is surely some legitimacy to that claim. Yet the omissions make it hard to scrutinize the report. That said, thanks to previous Pentagon documents and other public records, we do have a good picture of what the 29 men the report does name have been up to.

First, nearly half of the men on the new list — 14 of the 29 — are listed as being “suspected” of terrorist activities, which makes “recidivist” a fairly vague definition. Next, the acts that at least nine of the 29 are either known or suspected of having been involved with were not directed at America or at our immediate allies in our current wars, the governments of Iraq, Afghanistan and Pakistan.

This group includes men like Ravil Gumarov and Timur Ishmurat, who were convicted in 2006 of blowing up a gas pipeline in Russia. Another former detainee, Ruslan Odijev, was shot by the authorities in the city of Nalchik in the Russian North Caucasus who suspected he had taken part in a murderous raid against government security forces in 2005. Another Russian, Almasm Sharipov, made the list for “association” with Hizb ut-Tahrir, a pan-Islamic organization that is not considered a terrorist group by the United States.

Eleven other men named in the report are Saudis who were put on a “most wanted” list the kingdom issued with much fanfare in February. While two of them have clearly taken up jihad against America, the other nine stand accused of fomenting resistance only to the monarchy, according to Christopher Boucek of the Carnegie Endowment for International Peace, a top American expert on the Saudi program for the rehabilitation of terrorists. As he told us, “None of these guys has engaged in violence.”

In the end, the Pentagon has given out the names of only 12 former detainees who can be independently confirmed to have taken part in terrorist acts directed at American targets, and eight others suspected of such acts. This is about 4 percent of the 534 men who have been released. Obviously, the percentage would be higher if we were able to factor in the former detainees whose names were withheld. Yet it seems fair to say that the much-hyped 14 percent figure is likely a large overstatement of former Guantánamo inmates who have taken up arms.

Now, some Americans may argue that even a 1 percent recidivism rate from Guantánamo would be too high, while others will point out that this rate compares quite favorably to that of the United States writ large, as some two-thirds of people released from prison here are rearrested within three years.

We make neither of these arguments. Rather, our point is that the Pentagon should be as accurate as possible about how many of those released pose a threat to America. This is the only way that policy makers can make informed choices about closing Guantánamo, revising military commissions, deporting or repatriating prisoners or moving them to the United States, and keeping our nation safe.

There is a narrative about the prison at Guantánamo Bay that has stubbornly clung to the collective conscience since those first, notorious photographs emerged in early 2002 of the detainees in orange jumpsuits shackled inside open-air cages and ferried to interrogation sessions in wooden wheelbarrows.

Combined with a litany of Red Cross reports alleging abuse and torture inside the jail, and terrible tales of beatings told by many of the 550 inmates who have been released in the past seven years, the common assumption is this: Guantánamo Bay is a modern-day gulag, a filthy, wretched chamber of horrors filled with the screams of innocent men.

Having just returned from Guantánamo, I am compelled to say this: yes, it is unconscionable that men have been detained indefinitely without charge for so long. That is a form of torture in itself. President Obama is right to want to close the jail because it will never shed its image as a symbol of US brutality and extrajudicial zeal.

But Guantánamo has come a long way since the degradations heaped upon inmates in its first years. There are many worse jails inside the US. The irony is that just as the White House insists on shutting it, Guantánamo today – for all the millions of feet of razor wire, the shackles, the dirty protests – is a well-run facility where many of the detainees have rights and privileges that would have been unthinkable when it opened in January 2002.

It is important to remember that even Mr Obama’s aides concede that there are some very bad men inside. Well over 100 of its 241 inmates will end up being tried in federal courts or by military commissions. Up to 50 are too dangerous ever to be released.

Let me first compare the now overgrown Camp X-Ray, the outdoor maze of cages that operated for only four months, with the units that house detainees today. It is eerie to wander around Camp X-Ray. Although the cages are now besieged by vines and wild flowers, with yellow butterflies flitting from plant to plant, and boa constrictors hiding in the thick, long grass, it is hard to escape an overwhelming sensation of the ghosts of the past.

Few realise what a pivotal point Camp X-Ray is in modern US history. The story of Guantánamo Bay could have been very different. The image of an America that tortures and torments might never have taken hold, for when the first detainees arrived here in January 2002 – “the worst of the worst” as Donald Rumsfeld declared – Marine Brigadier-General Michael Lehnert, the camp commander, was intent on abiding by the Geneva Conventions.

To the anger of Mr Rumsfeld, in those first days Lehnert admitted officials from the International Committee of the Red Cross. With their help, his troops began to improve the grim and basic cages, which had no toilets. Even today they still contain the tiny faucet shaped hole, linked by a pipe that runs through the cage network, where detainees could urinate. Buckets were added so they did not have to live amid their own waste. Wooden roofs were added to shield them from the constant Cuban heat, and tropical storms. A Muslim chaplain was appointed. Korans and prayerbeads were given to those who wanted them.

In one bizarre episode, a special cage was built away from the main detention area for a detainee who had, as a young woman military guide delicately put it, a chronic self-pleasuring problem that sparked complaints from the other prisoners.

Yet by the end of February, Rumsfeld had sidelined Lenhert. Harsh interrogations became the core mission. Prisoners’ rights were gone. A mass hunger strike was mounted. Guantánamo had become a place of attrition and brutality – and its fate was sealed.

Today the US military is so sensitive about the stigma of Guantánamo that it is run fully in compliance with the Geneva Conventions. In Camp IV, for “fully compliant” detainees, they get 18 hours a day of communal “recreation”. Hiding, we watched some playing soccer, until they saw us. They shouted at the guards to take us away. The guards immediately acceded.

It was striking – almost alarming – just how big and healthy the prisoners look. They are offered 5,000 calories of halal food a day, classes in English, Arabic and art, and are called to prayer five times a day. Religious feast nights are observed. They have a medical check-up every week and receive dental treatment. Inside a television beams – live – two Arab channels and a soccer programme, although it stands behind protective perspex. The last one was destroyed when prisoners objected to bare female flesh during a Palmolive soap advert.

This is not the hell-hole so many still believe Guantánamo is. Indeed, the grossly underreported story is a US-run jail that Mr Obama does not want the world to focus on – the makeshift prison on the US airbase at Bagram, Afghanistan. There, more than 600 prisoners, many held for years and all without charge and indefinitely, are packed into conditions far worse than Guantánamo. They have virtually no access to lawyers. Journalists and human rights groups are barred. Earlier this year the Obama Administration opposed in court an attempt by some held there to challenge their detention.

It is Bagram, not Guantánamo, that should trouble the world’s conscience.

Obama administration officials say a final decision has not been made about where to relocate the 241 foreign nationals being held at the Guantanamo Bay detention facility and/or where to put them on trial. Such public statements, though, have not stopped rumors about which federal prisons or military brigs might be used to house the detainees. Indeed, the Keep Terrorists Out of America Act introduced this week and other legislation seek to prevent detainees from being sent to certain states or taxpayer funds from being spent to transfer Guantanamo detainees to U.S. soil. Defense Secretary Robert Gates said recently that he expects 535 bills, one for each senator and House member, to be introduced before a decision is made.

Some of the speculation has focused on the Albert V. Bryan U.S. Courthouse and Detention Center in Alexandria, which is in the district I represent in Congress.

First, let’s be clear: President Obama and Sen. John McCain both pledged last year to close the Guantanamo facility because they recognized that the United States is governed by the rule of law and defined by our embrace of universal human rights. Indefinitely detaining individuals without charge violates the most basic principle of habeas corpus, greatly damages our international reputation, and fuels both terrorist recruitment and anti-American sentiment.

While closing Guantanamo would go a long way toward removing this stain on our national character, the decision to do so was the easy part. What to do with the detainees who remain of the more than 700 sent there since 2001 is much more difficult.

Like those in any other congressional districts, we Virginians would rather not have terrorism suspects held and tried in our back yard. Should some of the detainees at Guantanamo be sent to the Alexandria courthouse, there is no question that people in the immediate vicinity — more than 10,000 residents and workers during business hours — would be affected. The strain on local law enforcement and other public safety officers would be significant. The media attention following such a decision would probably generate public outrage in some circles over safety concerns, regardless of the security measures implemented.

Often, though, doing the right thing is neither popular nor convenient.

By and large, Alexandrians are civic-minded people and are ready to do their duty if it serves the greater good. They have shown this public spirit time and again. The “20th hijacker,” Zacarias Moussaoui, who participated in planning the Sept. 11, 2001, attack on the Pentagon, was held and prosecuted in the Alexandria courthouse. Others who have been brought to justice in the court include the “American Taliban” John Walker Lindh; Beltway sniper John Allen Muhammad; and spies Robert Hanssen and Aldrich Ames.

In each case, Alexandria demonstrated the kind of courage and patriotism that can be traced to the city’s roots as the home town of George Washington and Robert E. Lee.

Taking the easy route and joining the chorus of those crying “not in my back yard” is appealing. But that’s not the Alexandria I know and have represented in Congress for nearly 20 years. Even before that, I served as mayor of the city, and I am confident that if asked to step forward, Alexandria would demonstrate resolve for a higher purpose, echoing John F. Kennedy’s call to accept the challenge presented because it is what happens to be right and good for our nation.

Trying the accused, no matter how heinous the accusation, in a fair and transparent judicial procedure will reestablish our international moral authority and thus strengthen our national security.

Let there be no mistake: I’m not advocating for this burden. If there are more suitable locations in which to try the detainees, it would be a relief to all in this area.

But should President Obama determine that Alexandria needs to play a reasonably limited role in a nationwide effort to bring justice to the Guantanamo detainees and close this unfortunate chapter of American history, I am confident that Alexandrians will stand strong as they always have: gritting their teeth, stiffening their spines and carrying the load required so that the American values of justice and the rule of law are not overridden but, rather, respected and honored, as is our heritage as a great nation.

President Obama has promised to shut down the detention camp at Guantanamo Bay, seeking to erase a blot on America’s global image. He has also reached out to Cuba, easing some travel and financial restrictions in an effort to recast Washington’s approach to the island. These two initiatives have proceeded on separate tracks so far, but now is the time to bring them together. Hiding in plain sight, the U.S. naval base at Guantanamo Bay is the ideal place for Obama to launch a far-reaching transformation of Washington’s relationship with its communist neighbor.

How? By preparing to give Guantanamo back to Cuba.

It’s not as impossible as it sounds. The United States has scaled back, modified or even withdrawn its military presence elsewhere; think Okinawa, South Korea, Subic Bay in the Philippines or Vieques in Puerto Rico. Whatever Guantanamo’s minor strategic value to the United States for processing refugees or as a counter-narcotics outpost, the costs of staying permanently — with the stain of the prisons, the base’s imperial legacy and the animosity of the host government — outweigh the benefits.

The time to begin this transition is now. By transforming Guantanamo as part of a broader remaking of Washington’s relationship with Cuba, the Obama administration can begin fixing what the president himself has decried as a “failed” policy. It can upend a U.S.-Cuba stalemate that has barely budged for 50 years and can put to the test Raul Castro’s stated willingness to entertain meaningful changes.

I visited the 45-square-mile U.S. naval base at the southeastern tip of Cuba last month at the invitation of Adm. James Stavridis, head of U.S. Southern Command. I went less to see the prison cells or learn about detainee treatment (though I did both) than to explore a region that I’d never visited in a quarter-century of traveling to and writing about the island. I not only wanted to see what was actually happening there, but also to imagine how the base could evolve once the detention facility is shut down and the eyes of the world shift elsewhere.

During my trip, it hit me how much Guantanamo — two-thirds of which is made up of the pristine waters of the bay that bears the same name — is really a part of Cuba. Overlooking the western side of the bay sat a pair of well-kept 1940s-style houses, precise replicas of the kind of residences I had seen in Havana weeks earlier. I hadn’t expected the natural environment to capture my attention the way it did. Manatees, which are disappearing elsewhere, breed in abundance; dolphins dart out of mangrove swamps and swim alongside the Navy’s ferries and motorcrafts as they cross the bay.

Driving along the fence line and seeing the Cuban flags and watchtowers, I was struck by the relative peace and quiet that both sides maintain at the one spot where they deal with each other most. In a way, when flag officers and staff from both sides meet each month at the base’s east gate, they continue a long history of pragmatic if ambivalent engagement that started well before Guantanamo became the nightmarish Gitmo.

After the United States intervened in the Spanish-American War in 1898, Washington forced Cuba to accept the creation of a naval coaling station at Guantanamo Bay in 1903 as a condition of independence. During several peak years of activity and construction in the 1940s, at least 9,000 Cuban civilians worked on the base, and small cities such as Caimanera and Boqueron catered to foreign soldiers with bars, brothels and the like. During the revolution, Cubans smuggled all sorts of supplies off the base to aid the rebel cause. Even after 1959, as the new Castro regime sharpened its attacks on symbols of American power, working on the base did not necessarily preclude being a good revolutionary. To this day, the United States provides pension benefits and health care to a handful of retired Cuban workers, some of whom still live on the base.

Since the Bay of Pigs invasion more than four decades ago, Havana has demanded the return of the base territory, but Washington has found little incentive to leave. The base is a financial freebie; the annual rent is only $4,000, although on grounds of pride and principle, Cuba has not cashed the check since 1959.

Yet the Cuban government has never taken steps, military or otherwise, to get the base back. “We are audacious and valiant,” remarked Cuban President Osvaldo Dorticos in 1964, “but we are not stupid.” Echoing such practicality, Raul Castro has referred to Guantanamo as a “neutral place” where dialogue with the Obama administration might one day unfold.

Since the 1990s, the monthly “fence-line” talks have ensured safety for the people who work in and around Guantanamo’s air, land and maritime borders. Shortly after the United States began housing terrorism suspects at the base, Raul Castro even offered to send back any detainee who tried to escape into Cuban territory. But as allegations of torture emerged and Guantanamo’s symbolism went global, Cuba joined the world in excoriating the United States.

Despite the glimmers of political will on both sides, a rapprochement between Washington and Havana will take time. Obama has called for the release of Cuba’s political prisoners. Cuba has its eye on the dismantling of American commercial sanctions and the return of Cuban spies now serving lengthy sentences in U.S. jails. The Castro brothers are unlikely to frame any reforms as a concession to Washington, while the Obama administration will wait to see how the government of Raul Castro fulfills its commitment to “improve the material and spiritual lives of the Cuban people.”

Of course, just as Obama is not going to lift the embargo tomorrow, neither will he simply give back the base the next day. But short of anything so bold, the two governments and their armed forces have already shown that Guantanamo can eventually become an ideology-free zone.

The two nations could expand their monthly gate talks beyond the issue of perimeter security to include drug trafficking, human smuggling, refugee processing and disaster preparedness and relief. Such confidence-building talks could lead to deeper cooperation, even on human rights and political prisoners.

Next, the United States should invite those same Cuban officers to cross the gates and tour Guantanamo, in part to view evidence of the Navy’s stewardship of the natural environment — a dimension of the American presence that is bound to challenge Cuban preconceptions. Third, hundreds of U.S. and international journalists, lawyers and refugee experts have visited the base in the past few years. Surely we can extend the same courtesy to their Cuban peers.

Finally, the Navy could invite public-health professionals from Cuba, the United States and other countries in the region to the base to develop strategies for cooperation. Proposals to convert the base to a public health research and treatment center date back to the Kennedy White House and have been viewed favorably by Havana ever since, especially in light of Cuba’s world-class expertise in infectious and tropical diseases.

These initiatives defy the argument that the United States should cling to the base — and the embargo, for that matter — as leverage to push Cuba toward democracy. The past 50 years have proven the fallacy of that logic. Returning Guantanamo Bay to full Cuban sovereignty and control is a win for the United States: Aside from the boon to America’s credibility with the Cuban people and throughout Latin America, these first steps would probe the Cuban government’s apparent disposition to use the base as a point of contact with the United States — and gauge the regime’s willingness to move the ball forward even more.

“As a president, I say the U.S. should go. As a military man, I say let them stay,” Raul Castro quipped last year. It’s hard to know exactly what he means. Floating these proposals would be a good way to find out.

El candidato a la presidencia de los Estados Unidos Barack Obama se fijó en Guantánamo para visibilizar el cambio que prometía, por eso, al día siguiente de su toma de posesión anunció el cierre de ese extraño lugar, declarando ilegal la tortura que allí se practicaba. Era un gesto ético que debía devolver la confianza de sus conciudadanos en los valores humanitarios sobre los que se había construido el país y que había que mantener “también en tiempos difíciles”.

Pero la ética tiene sus exigencias. Hay una ética complaciente que interpreta el crimen o la tortura como atentados a la moralidad de la ley, de suerte que bastaría ajustar la ley a los derechos humanos para que todo quedara sanado. Y hay otra ética que exige, a quien la invoque, hacerse cargo de los destrozos que las torturas legales causan en la sociedad para poder “mirar hacia delante y no hacia atrás” como quiere su jefe de Gabinete, Rahm Enmanuel. La ética política propia de los tiempos que corren es de ese tipo. La autoridad de la ley, con ser importante, lo es menos que los daños en humanidad que causa un crimen o la tortura en la sociedad, es decir, en el verdugo, en la víctima y en el resto de ciudadanos.

La sociedad, es verdad, no reacciona de la misma manera ante el crimen político que ante la tortura porque ve en el crimen una amenaza a lo más propio y, en la tortura, un instrumento del Estado, a veces exagerado, destinado a proteger vidas y haciendas. Minusvalorar la tortura es, sin embargo, un grave error porque su práctica mina las bases de la convivencia.

El crimen mata, en efecto, físicamente, mientras que la tortura busca la deshumanización del torturado. Jean Améry, un superviviente de Auschwitz que no pudo sacudirse nunca la ignominia de los castigos que padeció, dejó escrito un testimonio esclarecedor de esa bajada a los infiernos. “Con el primer golpe”, dice, “se quebranta la confianza en el mundo del que esperas cuide de tu ser físico y metafísico. Es como una violación sexual. La violación corporal es una forma consumada de aniquilación total de la existencia”. Aniquilación de la existencia humana porque el dolor obliga a renunciar a las convicciones más profundas para concentrarse en el cuerpo. Sólo se es piel, carne y huesos. La vergüenza por haber sacrificado su vida espiritual le acompañará de por vida. La última etapa de ese proceso de deshumanización consiste en reconocer la superioridad del torturador. “¿Cómo puede uno recibir golpes”, dice Robert Antelme, otro superviviente, “y pretender tener razón?”. Quien es capaz de reducir a un hombre a mero cuerpo tiene que ser “un dios o al menos un semidiós”, precisa Améry.

Lo que sí es innegable es que mediante la tortura el ser humano alcanza el éxtasis del poder, a saber, expulsar al otro de la condición humana. De Guantánamo nos vino una sobria confesión que coincide con las noticias que nos han llegado de los campos nazis: “Ahora soy medio animal y dentro de un mes seré un animal del todo”.

La deshumanización alcanza también al torturador. En la escuela de Himmler se preparaba a los cachorros nazis para sus futuras tareas enseñándoles “a soportar el sufrimiento ajeno”. Recibían el certificado de aptitud cuando lograban extirpar de sí mismos todo sentimiento de piedad. Y es que no se viola en vano la dignidad del otro. Hay que pagar con el precio de la propia indignidad. El funcionario de la prisión de Guantánamo podrá volver a casa, una vez cumplido el horario, y oír música, pero seguirá con la infamia que se ha ganado. La ley de obediencia debida, que invoca Obama, podrá liberarle de la condena pero no del destrozo humanitario.

Tampoco queda intocada la humanidad del espectador. El ciudadano de una sociedad con Guantánamo al fondo sólo puede vivir su vida si considera aquel lugar como un espacio marginal en el que se han suspendido excepcionalmente los derechos humanos. Un lugar así sólo es soportable a la buena conciencia si se nos presenta como un paréntesis, como una excepcionalidad.

Guantánamo es, desde luego, un lugar marginal, excepcional, extramuros de la polis estadounidense. No una cárcel, donde sí hay derechos, sino un “espacio sin ley” en el que los retenidos no son acusados de nada preciso, ni hay tribunales a los que recurrir, ni juicio a la vista, ni siquiera son declarados prisioneros de guerra sino inscritos como “combatientes ilegales”. Se les priva del derecho pero no se les deja en paz, sino que quedan sometidos al albur del carcelero cuya voluntad es la única ley. Guantánamo era lo más parecido a un campo de concentración, con un agravante. Una de las pocas normas que los nazis observaron con regularidad prusiana con los deportados consistía en desnaturalizarlos completamente, es decir, en despojarlos de los pocos derechos civiles que les habían dejado las leyes de Nürenberg de 1935. Por eso una orden del capitán de la SS, Dannecker, ordenaba que los judíos “deberían ser privados de su ciudadanía bien antes o bien en el día de su deportación”. Llegaban al Lager desprovistos de su categoría de sujetos de derechos para que fuera legal el uso de toda forma de violencia. Por lo que sabemos, a los “combatientes ilegales” de Guantánamo se les ahorraba esa formalidad, aunque las consecuencias eran parecidas en cuanto a la privación de derechos. Lo problemático de Guantánamo es que, aunque física y legalmente sea un lugar marginal o excepcional, moralmente está en el centro. Esa ciudad sin ley no se la inventaron los carceleros, sino que la decidieron los Bush, Cheney, Rice, Rumsfeld, es decir, los estrategas de una política que ha sacudido al mundo.

Éstas son las secuelas sociales de la tortura, un proceso de deshumanización que afecta al torturado, al torturador, al dirigente y al ciudadano que hizo su vida en ese tiempo como si Guantánamo no existiera.

Si Obama se plantea dejar atrás el legado de George W. Bush y “colocar a Estados Unidos en el buen lugar de la historia”, no le bastará con cerrar Guantánamo, cambiar la ley sobre torturas y aceptar que el fiscal general persiga a los abogados de los informes que cuadraron el círculo haciendo que actos de lesa humanidad adquirieran el rango de prácticas legales. Al fin y al cabo, los abogados hacen informes, dan opiniones y eso no parece que sea delito, por muy descabelladas que sean. La responsabilidad alcanza desde luego a los dirigentes políticos, y, más allá de las responsabilidades políticas, el problema es la salud moral de una sociedad que vivió felizmente teniendo al lado un campo de concentración.

Reflexionando sobre la significación de Guantánamo, el politólogo italiano, Giorgio Agamben, ha llegado a decir que el campo es el símbolo de la política moderna. Es desde luego una exageración pero el exabrupto apunta en una dirección que debería dar que pensar. Se multiplican, por un lado, los “espacios sin ley” aplicados preferentemente a emigrantes sin papeles, mientras que, por otro, “tres cuartas partes del mundo han recurrido a la tortura en los últimos años”, según Amnistía Internacional. ¿Será que vamos hacia una democracia con muchas leyes y poco derecho?

Elie Wiesel dejó dicho que “los santos son los que mueren antes del final”. La resistencia del ser humano respecto a la tortura tiene un límite. Mientras no se supere ese punto es posible la dignidad, pero una vez alcanzado no hay santidad ni heroicidad que valgan. El torturador busca ese límite porque en él está el secreto que espera arrancar del torturado. Dick Cheney lo justifica diciendo que gracias a esas confesiones se ha garantizado la seguridad de los que ahora le critican. En La Obra, Kafka también habla de un ser vivo tan obsesionado con la seguridad que al final los túneles que deberían protegerle se convirtieron en su propia trampa.

As administration officials huddled privately last week, thinking of ways to close the U.S. detention facility at Guantanamo Bay, Cuba, many of us hoped that they would think again. President Obama’s decision to shut down Guantanamo may have cheered critics of the Bush administration, but the alternatives under consideration show how elusive a satisfying resolution to this issue has become — and how dangerous closing Guantanamo could be.

Attorney General Eric Holder captured the dilemma after a recent trip to Guantanamo when he offered a glowing report on the facility, said the prisoners were being treated well — and then reiterated the administration’s intent to close it within the year. Holder was less expansive on what the administration plans to do with the detainees after Guantanamo is closed. The reason for his silence: No acceptable alternatives exist.

It’s not for lack of trying. Ever since the United States began using Guantanamo as a detention facility after the October 2001 invasion of Afghanistan, government officials and legal scholars have puzzled over what to do with enemy combatants who don’t fall into the traditional categories of war. No one denies that the United States is legally entitled to capture and hold enemy fighters and prevent them from returning to battle. But their release and repatriation have proved to be vexing questions, and over time the answers have become both more difficult and more critical.

According to Pentagon reports, detainees who have been released from Guantanamo appear to be reengaging in terrorism at higher rates, with the current rate of those either suspected or confirmed of reengaging in terrorism at about 12 percent. There’s a reason for this: Among the roughly 250 inmates who remain at Guantanamo are the worst of the worst, including dozens of proud and self-proclaimed members of al-Qaeda. Many have been directly involved in some of the worst terrorist attacks in history, including some who had direct knowledge of the Sept. 11 attacks. Others have trained or funded terrorists, made bombs or presented themselves as potential suicide bombers. As the pool of inmates has shrunk, those who remain are simply more dangerous, not less.

These people are among the least likely to be controlled if and when they return home. More than a third of the detainees who have already been released were from Saudi Arabia, which has its own detention and rehabilitation system. But our confidence in that system has been shaken by recent reports that at least one former Saudi detainee has returned to fighting. More worrisome is the prospect of releasing Yemeni detainees, about half the remaining population at Guantanamo, since Yemen has shown little ability to control even the most dangerous terrorists we release.

Some have proposed solving this problem by sending detainees to the United States. The most obvious flaw in this plan is that no one can say where. Two of the likeliest spots, the ADX “SuperMax” facility in Florence, Colo., and Fort Leavenworth in Kansas, are in states that are home to a member of the Cabinet, former Colorado senator Ken Salazar, and an incoming member of the Cabinet, Kansas’s Kathleen Sebelius. Both are opposed to using the facilities in their states. When the question of sending detainees to U.S. soil was put to the Senate, the vote against was 94 to 3. It’s hard to find anyone anywhere who wants his or her state to house the next Guantanamo.

The Obama administration has had to take on a number of thorny issues, but few will be as difficult as Guantanamo. Still, some things about Guantanamo are well worth recalling as the administration moves forward. First, not a single detainee has ever escaped to maim or kill innocents. Guantanamo Bay is, above all else, secure and safely distant from civilian populations.

Second, detainees are well cared for. They receive three meals a day. They are free to worship five times daily and provided with prayer beads, rugs and copies of the Koran in their native languages. They send and receive mail. The prison library offers more than 12,000 items in 19 languages (a favorite DVD, according to the librarian, is “Deadliest Catch” and a favorite book is the Arabic translation of “Harry Potter”). Medical care is said to be excellent. It is hard to imagine these men being treated nearly as well anywhere else in the world. Indeed, one European official who visited in 2006 called Guantanamo “a model” prison and better than the ones in Belgium. On my visit, the first detainee I came across was riding a stationary bicycle. This is not Abu Ghraib.

While some have raised the concern that holding enemy combatants at Guantanamo damages our prestige, any plan to transfer or release them must meet a simple test: Will it keep Americans as safe as Guantanamo has? If the answer is no, the administration must explain why fulfilling a campaign promise or pleasing European critics is a more important consideration. President Obama was right and courageous to rethink an artificial deadline on withdrawing U.S. forces from Iraq. As we approach another artificial deadline, it’s my hope that he has another change of heart.

On a bright sunny day two years ago, President George W. Bush strode into the East Room of the White House and informed the world that the United States had created a dark and secret universe to hold and interrogate captured terrorists.

“In addition to the terrorists held at Guantánamo,” the president said, “a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.”

At these places, Mr. Bush said, “the C.I.A. used an alternative set of procedures.” He added: “These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.” This speech will stand, I believe, as George W. Bush’s most important: perhaps the only historic speech he ever gave. In his fervent defense of his government’s “alternative set of procedures” and his equally fervent insistence that they were “lawful,” he set out before the country America’s dark moral epic of torture, in the coils of whose contradictions we find ourselves entangled still.

At the same time, perhaps unwittingly, Mr. Bush made it possible that day for those on whom the alternative set of procedures were performed eventually to speak. For he announced that he would send 14 “high-value detainees” from dark into twilight: they would be transferred from the overseas “black sites” to Guantánamo. There, while awaiting trial, the International Committee of the Red Cross would be “advised of their detention, and will have the opportunity to meet with them.”

A few weeks later, from Oct. 6 to 11 and then from Dec. 4 to 14, 2006, Red Cross officials — whose duty it is to monitor compliance with the Geneva Conventions and to supervise treatment of prisoners of war — traveled to Guantánamo and began interviewing the prisoners.

Their stated goal was to produce a report that would “provide a description of the treatment and material conditions of detention of the 14 during the period they were held in the C.I.A. detention program,” periods ranging “from 16 months to almost four and a half years.”

As the Red Cross interviewers informed the detainees, their report was not intended to be released to the public but, “to the extent that each detainee agreed for it to be transmitted to the authorities,” to be given in strictest secrecy to officials of the government agency that had been in charge of holding them — in this case the Central Intelligence Agency, to whose acting general counsel, John Rizzo, the report was sent on Feb. 14, 2007.

The result is a document — labeled “confidential” and clearly intended only for the eyes of those senior American officials — that tells a story of what happened to each of the 14 detainees inside the black sites.

A short time ago, this document came into my hands and I have set out the stories it tells in a longer article in The New York Review of Books. Because these stories were taken down confidentially in patient interviews by professionals from the International Committee of the Red Cross, and not intended for public consumption, they have an unusual claim to authenticity.

Indeed, since the detainees were kept strictly apart and isolated, both at the black sites and at Guantánamo, the striking similarity in their stories would seem to make fabrication extremely unlikely. As its authors state in their introduction, “The I.C.R.C. wishes to underscore that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.”

Beginning with the chapter headings on its contents page — “suffocation by water,” “prolonged stress standing,” “beatings by use of a collar,” “confinement in a box” — the document makes compelling and chilling reading. The stories recounted in its fewer than 50 pages lead inexorably to this unequivocal conclusion, which, given its source, has the power of a legal determination: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

Perhaps one should start with the story of the first man to whom, according to news reports, the president’s “alternative set of procedures” were applied:

“I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4 meters by 4 meters. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket.

“I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time.

“The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

“The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.”

So begins the story of Abu Zubaydah, a senior member of Al Qaeda, captured in a raid in Pakistan in March 2002. The arrest of an active terrorist with actionable information was a coup for the United States.

After being treated for his wounds — he had been shot in the stomach, leg and groin during his capture — Abu Zubaydah was brought to one of the black sites, probably in Thailand, and placed in that white room.

It is important to note that Abu Zubaydah was not alone with his interrogators, that everyone in that white room — guards, interrogators, doctor — was in fact linked directly, and almost constantly, to senior intelligence officials on the other side of the world. “It wasn’t up to individual interrogators to decide, ‘Well, I’m going to slap him. Or I’m going to shake him,’” said John Kiriakou, a C.I.A. officer who helped capture Abu Zubaydah, in an interview with ABC News.

Every one of the steps taken with regard to Abu Zubaydah “had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’”

He went on: “The cable traffic back and forth was extremely specific…. No one wanted to get in trouble by going overboard.”

Shortly after Abu Zubaydah was captured, C.I.A. officers briefed the National Security Council’s principals committee, including Vice President Dick Cheney, the national security adviser, Condoleezza Rice, and Attorney General John Ashcroft, in detail on the interrogation plans for the prisoner. As the interrogations proceeded, so did the briefings, with George Tenet, the C.I.A. director, bringing to senior officials almost daily reports of the techniques applied.

At the time, the spring and summer of 2002, Justice Department officials, led by John Yoo, were working on a memorandum, now known informally as “the torture memo,” which claimed that for an “alternative procedure” to be considered torture, and thus illegal, it would have to cause pain of the sort “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” The memo was approved in August 2002, thus serving as a legal “green light” for interrogators to apply the most aggressive techniques to Abu Zubaydah:

“I was taken out of my cell and one of the interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room.”

The prisoner was then put in a coffin-like black box, about 4 feet by 3 feet and 6 feet high, “for what I think was about one and a half to two hours.” He added: The box was totally black on the inside as well as the outside…. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”

After this beating, Abu Zubaydah was placed in a small box approximately three feet tall. “They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box; I think I may have slept or maybe fainted.

“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited.

“The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless.”

After being placed again in the tall box, Abu Zubaydah “was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

“I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week.”

Walid bin Attash, a Saudi involved with planning the attacks on American embassies in Africa in 1998 and on the Navy destroyer Cole in 2000, was captured in Pakistan on April 29, 2003:

“On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks…. I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural.”

This forced standing, with arms shackled above the head, seems to have become standard procedure. It proved especially painful for Mr. bin Attash, who had lost a leg fighting in Afghanistan:

“After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists.”

Cold water was used on Mr. bin Attash in combination with beatings and the use of a plastic collar, which seems to have been a refinement of the towel that had been looped around Abu Zubaydah’s neck:

“On a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements.

“Also on a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets…. I would be kept wrapped inside the sheet with the cold water for several minutes. I would then be taken for interrogation.”

Khalid Shaikh Mohammed, the key planner of the 9/11 attacks, was captured in Pakistan on March 1, 2003.

After three days in what he believes was a prison in Afghanistan, Mr. Mohammed was put in a tracksuit, blindfold, hood and headphones, and shackled and placed aboard a plane. He quickly fell asleep — “the first proper sleep in over five days” — and remains unsure of how long the journey took. On arrival, however, he realized he had come a long way:

“I could see at one point there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet X people. I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had [an] e-mail address ending in ‘.pl.’”

He was stripped and put in a small cell. “I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor,” he told the Red Cross.

“Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrist, resulting in open and bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing.”

For interrogation, Mr. Mohammed was taken to a different room. The sessions lasted for as long as eight hours and as short as four.

“If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe.”

As with Abu Zubaydah, the harshest sessions involved the “alternative set of procedures” used in sequence and in combination, one technique intensifying the effects of the others:

“The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of water boarding. The torture on that day was finally stopped by the intervention of the doctor.”

Reading the Red Cross report, one becomes somewhat inured to the “alternative set of procedures” as they are described: the cold and repeated violence grow numbing. Against this background, the descriptions of daily life of the detainees in the black sites, in which interrogation seems merely a periodic heightening of consistently imposed brutality, become more striking.

Here again is Mr. Mohammed:

“After each session of torture I was put into a cell where I was allowed to lie on the floor and could sleep for a few minutes. However, due to shackles on my ankles and wrists I was never able to sleep very well…. The toilet consisted of a bucket in the cell, which I could use on request” — he was shackled standing, his hands affixed to the ceiling — “but I was not allowed to clean myself after toilet during the first month…. I wasn’t given any clothes for the first month. Artificial light was on 24 hours a day, but I never saw sunlight.”

Abu Zubaydah, Walid bin Attash, Khalid Shaikh Mohammed — these men almost certainly have blood on their hands. There is strong reason to believe that they had critical parts in planning and organizing terrorist operations that caused the deaths of thousands of people. So in all likelihood did the other “high-value detainees” whose treatment while secretly confined by the United States is described in the Red Cross report.

From everything we know, many or all of these men deserve to be tried and punished — to be “brought to justice,” as President Bush vowed they would be. The fact that judges, military or civilian, throw out cases of prisoners who have been tortured — and have already done so at Guantánamo — means it is highly unlikely that they will be brought to justice anytime soon.

For the men who have committed great crimes, this seems to mark perhaps the most important and consequential sense in which “torture doesn’t work.” The use of torture deprives the society whose laws have been so egregiously violated of the possibility of rendering justice. Torture destroys justice. Torture in effect relinquishes this sacred right in exchange for speculative benefits whose value is, at the least, much disputed.

As I write, it is impossible to know definitively what benefits — in intelligence, in national security, in disrupting Al Qaeda — the president’s approval of use of an “alternative set of procedures” might have brought to the United States. Only a thorough investigation, which we are now promised, much belatedly, by the Senate Intelligence Committee, can determine that.

What we can say with certainty, in the wake of the Red Cross report, is that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact. We can also say that the decision to torture, in a political war with militant Islam, harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us. The consequences of this choice, legal, political and moral, now confront us. Time and elections are not enough to make them go away.

La reciente y tan triunfalmente aireada entrevista entre la secretaria de Estado de los Estados Unidos, Hillary Clinton, y nuestro ministro de Asuntos Exteriores, Miguel Angel Moratinos, nos trae la inquietante noticia de que el Gobierno, a modo de penitencia por anteriores pecados sedentes, estaría dispuesto a asumir el compromiso de recibir en España un indeterminado número de los presos recluidos desde hace años en Guantánamo, y que los norteamericanos parecen querer ahora traspasar a aquellos aliados que, como en el caso de España, quieren hacer méritos.

Como es bien sabido, todos estos presos de Guantánamo se encuentran detenidos en condiciones inhumanas en aquella cárcel vergonzosa y vergonzante a partir de los atentados del 11-S con la etiqueta de presuntos terroristas, sin tener ni tan siquiera la esperanza de un juicio justo por un tribunal imparcial y con las debidas garantías, ya que los pocos que hasta ahora han sido enjuiciados lo han sido por tribunales militares de excepción, más tarde declarados ilegales por el Tribunal Supremo, y que finalmente han sido suspendidos y vetados por el propio presidente Barack Obama en la primera decisión tomada tras el juramento de su cargo.

Parece que ahora Estados Unidos quiere repartir y endosar a otros esta mercancía peligrosa y el jefe de la diplomacia española ha hecho pública su disposición a asumir tan denigrante compromiso «siempre y cuando las condiciones jurídicas para ello sean aceptables».Esas «condiciones jurídicas aceptables» ni existen ni pueden ser asumidas conforme al ordenamiento jurídico español.

El derecho fundamental a la libertad que tiene cualquier persona, consagrado por el artículo 27 de la Constitución Española, admite, como lógica excepción, la privación de la misma por mandato o decisión judicial y conforme a una estricta regulación legal, que es especialmente exigente en el caso de la prisión preventiva, es decir, la que se decreta como medida de aseguramiento antes del juicio, por más que ello implique la paradoja de que a alguien se le encarcele para saber si hay que encarcelarle.

Esa regulación legal de la prisión preventiva exige, en primer lugar, la existencia de un procedimiento abierto y en marcha contra la persona a la que se prive de libertad y, en segundo término, la existencia de unos plazos legales máximos, transcurridos los cuales la situación de prisión provisional no puede ser mantenida.

Por lo tanto, la posibilidad de que los denominados presos de Guantánamo pudieran seguir siéndolo en España implicaría la necesidad de que los tribunales españoles (y más concretamente los Juzgados Centrales o la Sala de lo Penal de la Audiencia Nacional) abrieran un proceso que soportara y sirviera de marco a la medida cautelar del mantenimiento de la prisión provisional.

Como bien sabemos por las muy notorias y a veces extravagantes causas incoadas por nuestros jueces estrella, y en razón del denominado principio de jurisdicción universal aplicable a determinados delitos -entre los que se encuentra el terrorismo- y que tienen su soporte legal en el artículo 23.4 de nuestra Ley Orgánica del Poder Judicial, la jurisdicción española sería competente para enjuiciar hechos cometidos fuera del territorio nacional, cualquiera que sea la nacionalidad de sus autores o de las víctimas.Pero para que eso ocurra se tiene que dar una condición, en razón del principio non bis in idem, y es que otra jurisdicción no tenga ya abierto un proceso sobre los mismos hechos, como es el caso de los presos de Guantánamo.

Es cierto que en el ordenamiento jurídico español existe la figura de la inhibición, que consiste en que un juzgado o tribunal que esté conociendo de una causa, por propia decisión o a requerimiento de otro, o por resolución de su superior jerárquico en caso de un conflicto competencial entre ambos, decline esa competencia para continuar con el enjuiciamiento en otro órgano jurisdiccional, y ello siempre en razón de la concurrencia de alguna circunstancia personal (por ejemplo, en el caso de aforados) o de índole territorial.

¿Cómo podría entenderse, justificarse o aplicarse tal principio, sin que chirriaran los más elementales engranajes jurídicos, para que los tribunales españoles pasaran a asumir la competencia de las causas abiertas en Estados Unidos respecto de los presos de Guantánamo? ¿Qué razones jurídicas válidas -no de mero compadreo político- podrían aducirse para que, de golpe y sobrevenidamente, la jurisdicción norteamericana decidiera declinar su competencia para enjuiciar estos procesos a favor de los tribunales españoles, y que éstos decidieran aceptarla?

Pero es que, aun cuando ello fuera posible, es claro que la forzada solución de ese problema jurídico (respecto del que también la Fiscalía del Estado tendría mucho que decir) ocasionaría correlativamente un conflicto político por la necesidad de tener que poner de inmediato en libertad a aquellos presos que recibiéramos, y a los que desde el mismo momento en que pisaran suelo español les serían aplicables todos los derechos y garantías de nuestro ordenamiento jurídico, y entre ellos la imposibilidad de mantener la prisión preventiva más allá del plazo máximo establecido por Ley.

estos plazos, fijados por el artículo 504 de nuestra Ley de Enjuiciamiento Criminal, establecen, incluso para los delitos más graves y aplicando la prórroga correspondiente, un máximo de cuatro años para cuyo cómputo, necesaria y obligatoriamente, habría de tenerse en cuenta el tiempo del que ya vinieran privados de libertad por la causa que la jurisdicción española asumiera continuar (no iniciar ex novo). Dadas las fechas desde las que vienen manteniéndose estos encarcelamientos de Guantánamo, ello implicaría que los presos que se entregaran a España, tan pronto como se constatara que han cumplido ese plazo máximo legal de detención preventiva, dejarían de serlo y tendrían que ser puestos en libertad en nuestro territorio. ¿Es esto lo que se pretende o desea?

Antes de asumir compromisos tan delicados y transacciones tan denigrantes sobre esa peculiar mercancía humana, y dado que no es posible ni admisible que España se limite a ofrecer una mera función de almacenamiento o de alquiler del servicio de custodia de presos de otros países, parece imprescindible que todas las instancias jurisdiccionales y políticas implicadas se detengan a considerar que el ordenamiento jurídico español no puede acoger ni digerir una operación de esta índole.

Nuestros arrepentidos y conversos gobernantes, rendidos al culto del dios Obama, parecen asumir que tienen una factura pendiente con los Estados Unidos de América. Pero tendrán que pensar otro modo de pagarla.

Uno de los actos de la presidencia Obama mejor recibidos por la opinión pública internacional ha sido, sin duda, la orden ejecutiva que decreta el cierre de la prisión de Guantánamo «tan pronto como sea posible, a más tardar en el plazo de un año». Esa decisión reconoce a los más de 200 presos actuales los derechos consagrados en el artículo 3º del Convenio de Ginebra de 1949 sobre prisioneros de guerra: prohibición de trato inhumano o degradante y de la tortura, así como la proscripción de la condena sin juicio justo. La orden establece que, una vez cerrada, los prisioneros restantes deberán ingresar en otra prisión que concilie la exigencia de seguridad con el respeto a los derechos humanos, o bien habrán de retornar a su país de origen o ser transferidos a un tercer Estado, o, en fin, quedarán en libertad, según las circunstancias.

La iniciativa de Obama viene a ser el último eslabón de una cadena de propuestas legislativas, presentadas a lo largo de los dos últimos años, tanto por representantes demócratas como republicanos, con el mismo objetivo: la vuelta a la normalidad jurídica y a los principios que inspiran la Constitución norteamericana tras tantos años de conculcación, bajo la excusa de la amenaza terrorista. Sin embargo, este ‘retorno a la ley’ presenta notables dificultades debido, precisamente, a las condiciones bajo las cuales fueron detenidas y permanecieron privadas de libertad alrededor de 800 personas. La Unión Europea lleva tiempo estudiando algún procedimiento que permita satisfacer la petición estadounidense para que algunos de los ex detenidos recalen en su territorio e incluso el Parlamento comunitario se ha pronunciado favorablemente a la acogida. Pero los interrogantes siguen presentes. ¿Bajo qué condiciones serían recibidos? ¿Podrían comportarse con absoluta libertad? ¿Tendrían derecho a reclamar judicialmente contra las autoridades norteamericanas?

La respuesta a estas preguntas exige analizar las condiciones bajo las cuales se procedió a detener y encarcelar a esas personas. De acuerdo con la orden militar dictada por Bush en noviembre de 2001, Estados Unidos tenía derecho a perseguir a los sospechosos de terrorismo en cualquier lugar del mundo y a juzgarles mediante un procedimiento sumario ante comisiones militares. Se trataba, en realidad, de un régimen jurídico excepcional que adolecía de gravísimas lagunas en el respeto a los derechos humanos. Por lo que respecta al procedimiento de captura, Bush reconoció -en febrero de 2006- que la CIA estaba aplicando un programa de detenciones secretas fuera de EE UU y que muchos de los así detenidos eran conducidos a Guantánamo. Tanto el Parlamento europeo como el Comité Venecia del Consejo de Europa emitieron en 2007 sendos informes en los que se denunciaba la violación de derechos humanos que dichas detenciones arbitrarias comportaban, derechos que «no pueden menoscabarse, ni siquiera por razones de seguridad, ni en tiempo de paz ni en tiempo de guerra». Al mismo tiempo, se advertía a los países miembros de su responsabilidad cómplice en caso de permitir el paso por su territorio de dichos vuelos y de la eventual intervención del Tribunal Europeo de Derechos Humanos. Conviene añadir, a todo ello, que una detención practicada con absoluta ilegalidad vicia el procedimiento penal contra el detenido, que tendría derecho a solicitar su inmediata puesta en libertad o ‘habeas corpus’.

Por lo que se refiere a la valoración de las condiciones en que permanecieron recluidos en Guantánamo durante años varios cientos de personas, sin conocer siquiera el delito por el que eran acusados, resulta extremadamente clarificador el informe emitido por el Comité de Derechos Humanos de Naciones Unidas, en febrero de 2006, en el que se describe la conculcación sistemática del Pacto Internacional de Derechos Civiles y Políticos por parte de Estados Unidos, afirmándose, en particular, que dicha reclusión constituía una «privación arbitraria de la libertad personal». Por otro lado, el Comité analizó con todo lujo de detalles los procedimientos utilizados por los encargados de la custodia sobre los presos, calificándolos como ‘tortura’, en el sentido estrictamente jurídico del término.

Si todo esto ha ocurrido durante los siete años en los que Guantánamo ha permanecido abierta, no parece serio pensar que bastará con su cierre y puesta en libertad de las personas ilegalmente detenidas o torturadas para que los responsables de esa indignidad queden limpios de responsabilidad. Sea cual fuere la fórmula que finalmente adopte la Unión Europea, y sus Estados miembros, hay que advertir con rotundidad de que esas personas víctimas de gravísimos atentados contra su dignidad van a tener a su disposición las garantías inherentes al sistema democrático europeo para personarse ante los tribunales y denunciar los delitos de los que han sido objeto: detención ilegal, tortura, etcétera. En España podrían hacerlo ante la Audiencia Nacional, con competencia universal para esta clase de crímenes. Ningún arreglo diplomático lo va a evitar. Tampoco el traslado de los ex reclusos a sus países de origen si no hay garantía absoluta de que no sufrirán tortura, pues lo prohíbe expresamente la Convención sobre la misma. Estos ‘inconvenientes’ podrían salvarse con facilidad dejando que la brecha ilegal de Guantánamo se cierre por sí sola y en suelo estadounidense. Es decir, que los ilegalmente detenidos queden libres y denuncien ante la justicia penal de ese país a los responsables de tantos crímenes, que de ninguna manera pueden quedar impunes.

El nuevo presidente de Estados Unidos ha manifestado su intención de cerrar Guantánamo y tanteado la posibilidad de enviar a algunos de sus prisioneros a países europeos, incluido España. Éstos se muestran reticentes a aceptarlos y han manifestado la necesidad de estudiar previamente los aspectos jurídicos y políticos de tales entregas. Y es que el cierre de Guantánamo no puede de ninguna manera dar lugar a cientos de procesos ilegales de entrega y detención de personas. Por otro lado, el cumplimiento de la legalidad vigente en los países de acogida podría dar lugar a la puesta en libertad inmediata de personas que Estados Unidos considera “muy peligrosas“.

Nos enfrentamos a dos tipos de supuestos diferentes, cada uno con problemas jurídicos propios:

En el caso de presos acusados de algún delito, el Estado receptor debería iniciar un proceso contra la persona detenida en Guantánamo y pedir la extradición. Pero sólo se puede iniciar dicho proceso si los tribunales nacionales tienen competencia sobre el delito del que el sujeto es acusado, lo que puede no suceder cuando el hecho se cometió en un territorio extranjero y por extranjeros. Un juez español sólo puede juzgar delitos cometidos por extranjeros fuera de España en los casos previstos expresamente en la ley. España podría por tanto pedir la extradición de sus nacionales, o de aquellos a quienes acusara de haber cometido un delito en España o de quienes estén acusados por los tribunales españoles de un delito perseguible extraterritorialmente. Estos delitos vienen recogidos en la ley mediante un listado tasado, y entre ellos figuran el terrorismo o los crímenes de guerra.

Especial atención merece el delito de pertenencia a una organización terrorista, que es la acusación que pesa sobre muchos de los prisioneros. El Tribunal Supremo dejó claro en el caso Otegi (auto de 23 de mayo de 2002) que cuando la ley establece la persecución universal del delito de terrorismo se refiere a éste en un sentido estricto, es decir, a la comisión de actos de terrorismo recogidos en los artículos 571 a 577 del Código Penal, y no a otras conductas como la apología del terrorismo. Siguiendo tal argumentación se podría entender que el delito de asociación ilícita terrorista, dado que no está regulado en nuestro Código Penal bajo la rúbrica “delito de terrorismo”, sino en un título diferente, no entra en esa definición estricta y no es perseguible por nuestros tribunales cuando se ha cometido fuera de territorio español y por extranjeros.

La entrega de un acusado al que nuestros tribunales no pudieran perseguir por falta de competencia supondría su inmediata puesta en libertad.

El segundo problema, una vez iniciado un proceso contra el acusado, es el de la invalidez de la prueba obtenida sin garantías legales y de todas las pruebas derivadas de la misma. Ejemplos de este tipo de problemas los hemos vivido ya en nuestro país, donde han sido juzgados y absueltos dos ex presos de Guantánamo: Hamed Abderraman y Lahcen Ikassrien. Ambos fueron acusados por Baltasar Garzón de pertenencia a organización terrorista (asociación ilícita). Se les acusaba de formar parte de Al Qaeda, en la que se habrían integrado con la ayuda de la célula española de dicha organización. A pesar de que el juez pidió su extradición, ambos fueron directamente subidos a un avión por las autoridades militares. En un futuro el compromiso de España para juzgar a presos de Guantánamo debería condicionarse a su entrega siguiendo el procedimiento legal de la extradición, único que garantiza los derechos del acusado y el respeto a los convenios internacionales, rechazando este tipo de entregas irregulares.

Abderraman, el único prisionero español, fue condenado por la Audiencia Nacional en 2005 a seis años de prisión. La Audiencia Nacional se negó además a descontarle como prisión provisional el tiempo de detención sufrido en Guantánamo, lo que, quizá pueda defenderse con una aplicación formal de la ley, pero no deja de parecer injusto. Sin embargo, en 2006 el Tribunal Supremo anuló aquella sentencia y decretó su absolución e inmediata puesta en libertad. El Supremo consideró nulas todas las pruebas que se habían presentado contra él, excepto su declaración en el juicio, única que se había realizado respetando los derechos del acusado. Se declararon nulas las escuchas telefónicas realizadas por la policía española, antes de que Abderraman fuese apresado en Afganistán, y que habían servido a la Audiencia para relacionarle con miembros de la célula española de Al Qaeda, por irregularidades en su autorización judicial -lo que no guarda relación con su detención en Guantánamo-, y, lo que es más interesante, se anularon también los posteriores interrogatorios a los que había sido sometido en la base norteamericana por policías españoles y las declaraciones de éstos basadas en aquellos interrogatorios, al considerarse que todo lo actuado en Guantánamo era nulo por haberse realizado vulnerando las garantías y los derechos que la legislación española concede al acusado. Al examinar la única prueba restante, su declaración, el tribunal afirmó que no se puede identificar sin más la intención manifestada por Abderraman de incorporarse al ejército talibán con la de hacerlo a Al Qaeda, que el acusado había declarado no pertenecer a dicha organización y que había condenado los atentados del 11-S, por lo que no puede desprenderse de sus solas manifestaciones prueba suficiente de pertenecer a la organización terrorista.

Unos días después, la Audiencia Nacional, siguiendo esta jurisprudencia, absolvió al marroquí Lahcen Ikassrien, al declarar nulas las escuchas telefónicas (realizadas en la misma investigación y con los mismos fallos de procedimiento) y los interrogatorios de Guantánamo, e insuficientes las declaraciones del acusado para deducir de ellas su culpabilidad.

Estos precedentes muestran las dificultades de prueba con las que pueden enfrentarse estos procesos, al considerarse, con toda razón, nulas todas aquellas que tengan su origen en actuaciones realizadas en Guantánamo.

La otra posibilidad es la de aceptar prisioneros sobre los que no recae ninguna acusación y que no pueden ser devueltos a su país de origen. Esta vía exige que el prisionero solicite asilo, en una embajada española o a través de un representante en España, y argumente fundados temores de ser perseguido por motivos de raza, religión, nacionalidad, pertenencia a un grupo u opiniones políticas en el país de su nacionalidad. El asilo se extendería, según la ley española, a los padres, los hijos y el cónyuge o pareja de hecho del sujeto.

Pero tanto la legislación española como la Convención de Ginebra sobre el estatuto de los refugiados niegan el asilo a quien haya sido condenado por un delito especialmente grave o se sospeche que ha cometido determinados delitos (crímenes internacionales, grave delito común, o actos contrarios a las finalidades y principios de Naciones Unidas), o a quien por otra razón fundada se considere un peligro para la seguridad del país donde se encuentra. Por tanto, la concesión de asilo a un prisionero de Guantánamo exigirá no sólo que no haya cargos contra él, sino además que Estados Unidos manifieste previamente lo contrario a lo que ha venido defendiendo todos estos años: que el sujeto no es peligroso.

Por último, nadie puede garantizarle a Estados Unidos que en el país de acogida el ex prisionero no inicie acciones judiciales contra las autoridades estadounidenses por las torturas u otros crímenes de guerra que hubiera podido padecer en Guantánamo, si los tribunales nacionales pueden, según su legislación, perseguir extraterritorialmente tales delitos, pues evidentemente no se puede limitar el acceso a la justicia del asilado.

Y al respecto hay que señalar que gran parte de la doctrina opina que la invasión por Estados Unidos de Afganistán inicia un conflicto armado internacional que hace aplicables a los prisioneros -combatientes o civiles- los Convenios de Ginebra de 1949, y que la Audiencia Nacional es competente para juzgar las graves violaciones de dichos convenios -crímenes de guerra- con independencia del lugar de comisión y la nacionalidad del autor, como manifestó el Tribunal Supremo en el caso Couso (STS de 11/12/2006).

El agujero negro legal de Guantánamo debe cesar de inmediato, pero su existencia ha generado y seguirá generando numerosos problemas jurídicos que deberemos enfrentar con absoluto respeto a la ley española, el derecho internacional y los derechos humanos.

La decisión del presidente Barack Obama de cerrar Guantánamo, rubricada en una orden ejecutiva horas después de su investidura, ha sido un gran paso adelante en el camino que debe iniciar ahora EEUU para volver del lado oscuro de los derechos humanos en el que ha permanecido más de siete años.
Pero cerrar Guantánamo no es únicamente echar la llave a la instalación. Esto es tarea fácil para el país más poderoso del planeta. Se trata sobre todo de ofrecer justicia y reparación a las víctimas de esta atrocidad, más de 240 personas que permanecen aún detenidas allí, muchas sin cargos. También se trata de rendir cuentas, es decir, de buscar a los responsables de las graves violaciones de derechos humanos que se han cometido, y de sentarlos en el banquillo. Esto es más difícil.
Las órdenes ejecutivas firmadas por Obama sobre los interrogatorios y el programa de detención secreto de la CIA suponen que EEUU ya no autoriza la detención en lugares secretos ni la tortura con técnicas como el waterboarding simular un ahogamiento, pero se mantiene la posibilidad de que la CIA lleve a cabo detenciones “breves y transitorias” o utilice centros no controlados por EEUU para hacer detenciones e interrogatorios por encargo. Es decir, las famosas entregas extraordinarias pueden no haber llegado a su fin.

LA ORDEN ejecutiva sobre interrogatorios debería afectar también a una orden ejecutiva de noviembre del 2001 en materia militar sobre detención, tratamiento y enjuiciamiento de ciertos extranjeros en la guerra contra el terrorismo, y suponer de facto la desclasificación del secreto oficial sobre todos aquellos dictámenes judiciales y otros documentos que au- toricen o aprueben el uso de técnicas de interrogatorio y condiciones de reclusión. Será conveniente seguir con lupa la evolución de estas cuestiones.
Los juicios ante las comisiones militares y el sistema de tribunales de revisión del estatuto de combatiente, así como las juntas de revisión administrativa, han sido únicamente suspendidos, no eliminados. La Administración de
Obama debe anunciar un plan para acusar sin dilación y enjuiciar ante tribunales federales a las personas detenidas en Guantánamo o ponerlas en libertad. También debe asegurar que a los detenidos que puedan correr peligro de sufrir violaciones graves de sus derechos si fueran devueltos a su país de origen se les ofrece la oportunidad, si lo desean, de vivir en EEUU, y trabajar con otros gobiernos para garantizar protección a otros detenidos en circunstancias similares. En relación con esto, la Unión Europea tiene el deber de colaborar y ofrecer asilo a aquellos detenidos que pudieran necesitarlo.
En relación con la erradicación de la tortura, la orden ejecutiva sobre interrogatorios marca claramente un antes y un después en la prohibición de su uso o de otros tratos crueles, inhumanos o degradantes, tal y como se definen en el derecho internacional. Sin embargo, siguen siendo preocupantes algunas disposiciones del Manual de Campo del Ejército, al cual deben referirse a partir de ahora también los agentes de la CIA, que son incompatibles con la prohibición internacional de la tortura.
Por otra parte, Obama no ha anunciado que el Gobierno dejará de utilizar información obtenida mediante tortura u otros malos tratos, salvo como prueba contra quienes han torturado. Tampoco ha anunciado el compromiso de trabajar con el Congreso para retirar todas las reservas y declaraciones interpretativas de carácter restrictivo relacionadas con la tortura y otros malos tratos que se hayan formulado al ratificar EEUU tratados de derechos humanos, incluidos el Pacto Internacional de Derechos Civiles y Políticos y la Convención de la ONU contra la Tortura.

EN RELACIÓN CON las medidas contra la impunidad que ha reinado durante estos años, es fundamental para el éxito de todo este proceso que se inicien investigaciones independientes sobre las prácticas de entrega extraordinaria, detención secreta e interrogatorio llevadas a cabo por EEUU o en su nombre, y rechazar toda situación de impunidad por crímenes de derecho internacional, como la tortura y otros malos tratos a personas detenidas y la desaparición forzada.
También queda por resolver la importante cuestión de las desapariciones. El Gobierno estadounidense debe dar a conocer los nombres, nacionalidad, paradero actual, situación jurídica y circunstancias de la detención de todas las personas que han sido objeto de entrega extraordinaria o recluidas en virtud de programas de detención secreta.
Finalmente, Obama debe anunciar que su Gobierno trabajará para garantizar que las víctimas de violaciones de derechos humanos de las que autoridades estadounidenses podrían ser responsables, tendrán un acceso efectivo a reparación y vías de recurso.
Los retos son enormes, pero nadie ha dicho que corregir una aberración del tamaño de Guantánamo sea fácil. Durante siete años años, el Gobierno de EEUU ha recibido la presión de millones de personas corrientes, indignadas por los ataques a los derechos humanos de la Administración de Bush. Hoy Obama tiene una tarea… y un manual de instrucciones.

Guantánamo se ha convertido en un género artístico. También en un vertedero real y al mismo tiempo metafórico por el que se precipitan, en escasos kilómetros cuadrados, los vestigios del comunismo y una base naval de Estados Unidos con todas las reminiscencias neocoloniales. Allí están el terrorismo islamista y las torturas de la democracia liberal. Guantánamo está en el premio Nobel de Literatura (que lo aloja en el discurso de Harold Pinter) y en el León de Oro del Festival de cine de Berlín (que premia Camino a Guantánamo, de Michael Winterbottom y Mat Whitecross). En el arte radical de Banksy (que lo coloca en una parodia de Disney World con su instalación Big Thunder Mountain Railroad) y hasta en el thriller de espías (El afgano, de Frederick Forsyth; El prisionero de Guantánamo, de Dan Fesperman). Una artista española -Alicia Framis- ha llegado a sugerir que la cárcel de Guantánamo sea convertida en un museo.

Crítica y frivolidad, literatura e imagen anidan en esa alcantarilla de la globalización.

Paradojas -y complicidades- de la cultura contemporánea: al otro lado del mundo, en Abu Dhabi, se trabaja a marchas forzadas para acercar la cultura de Occidente a los musulmanes. Con una franquicia del Louvre prevista para 2012 en la isla de Saadiyat, financiada por los árabes y diseñada por Jean Nouvel. El emirato construirá allí mismo otros museos: Guggenheim, marítimo, nacional… Hacia Oriente se desplazarán, pues, Goya y Picasso; quién sabe si un Jeff Koons, un Hermann Nitsch, un Damien Hirst.

En Guantánamo no ocurrirá nada parecido. Hacia esa zona del Caribe no viajarán Avicenas o Averroes, tampoco los esplendores de la poesía sufí. Mucho menos los artistas actuales que, contra viento y marea, han construido lo que Catherine David ha fijado como “representaciones árabes contemporáneas”. No hay por allí agasajo alguno que amortigüe el encontronazo. Sólo terroristas, cómplices de terroristas o inocentes sospechosos de serlo; siempre el Corán…

Alrededor, no faltan prisiones cubanas para cubanos, presos políticos incluidos, si bien esta cifra acostumbra a desaparecer en las fórmulas del arte global, acorralado entre su intención crítica y la patética posibilidad de quedar como avanzadilla evangelizadora de otros intereses menos espirituales.

Buena parte de estos creadores lo ignora olímpicamente, pero a Guantánamo no le ha faltado pulsión global. Un astronauta guantanamero llegó a plantarse en la estratosfera durante los años de la Guerra Fría. Aunque quizá el punto más alto de su globalización -si esto es posible comparado con mirar la tierra desde el cosmos- tiene que ver con la música, y con esa pieza que hoy se repite hasta en los campos de fútbol: la Guantanamera. Más allá de Cuba, la hizo famosa Pete Seeger -quien, de paso, se benefició durante un tiempo de su copyright (izquierda y colonialismo no siempre resultan antagónicos)-, y ha sido repetida por todo tipo de intérpretes y estilos musicales. Tito Puente y Los Lobos, José Feliciano y Julio Iglesias, Los Olimareños y Celia Cruz, Pérez Prado y Joan Baez, The Weavers y Yellowman, Nana Mouskouri y Wyclef Jean…

Resulta que mientras más se escribe, se filma, se instala o se pinta sobre Guantánamo, más inútiles resultan las metáforas para entender cualquier cosa. Para saber, por ejemplo, algo de su historia como villa colonial o provincia comunista. La palabra “Guantánamo”, hoy, no es más que el topónimo de una degradación: base militar neocolonial, centro de retención de haitianos, cubanos o kosovares (según el conflicto del momento), cárcel donde se practica la tortura fuera del Estado de derecho. Décadas como albergue de distintas cuarentenas geopolíticas.

Es curiosa, por otra parte, la contención con que ha sido tratado este asunto por parte del Gobierno cubano, que no acostumbra a dejar pasar oportunidad para la diatriba con Estados Unidos. Tal vez no hay aquí misterio alguno. La presencia misma de la base es un contrapeso idóneo para el régimen socialista, la parte maldita capaz de probar -a lo grande- que en democracia también se violan los derechos humanos.

Barack Obama ha anunciado su primera medida: cerrará la cárcel de Guantánamo. Sería todo un detalle que, de paso, echara el cerrojo al Eje del Mal, ese alistamiento bautizado por su predecesor que comprime -junto a las censuras locales- a los intelectuales más interesantes de esa reserva planetaria de países parias. Creadores que se resisten a compartir semejante bipolaridad y se niegan a jugar con las cartas marcadas. Obama tiene al alcance, todavía, una tercera iniciativa: cerrar la base naval y devolverla a Cuba. Éste sería un comienzo notable para simplificar la ecuación de este multiorgasmo de la ignominia.

Al contrario de algunas tiranías o movimientos terroristas, que suelen ser perdonados por el pasado -por alguna injusticia seminal-, la democracia sólo es juzgada, y condenada, por el presente. El precio que se paga por ella es alto o no es nada. Un presidente con orígenes africanos, una biografía transcultural, y entre cuyos nombres figura el de Hussein, tiene en sus manos adelantar ese momento de la “página en blanco”, el “grado cero” para reiniciar la historia. Cualquier figura efectiva capaz de imaginar la última -y ojalá que útil- metáfora en Guantánamo.

For some years now, the British Government has professed the wrongness of Guantánamo Bay. Tony Blair called it an “anomaly”; others were more forthright. Indeed, the Cuban camp that houses about 250 prisoners, without trial or charges after seven years, is a profound exercise in hypocrisy. The West is here to promote the rule of law, proclaimed George Bush with Mr Blair at his side – but don’t ask us to respect it ourselves. Because hypocrisy is the yeast that ferments hatred, the Guantánamo experiment has been a recruiting sergeant for extremism. And so long as the suicide bombers flock to the standard, everyone is a loser.

Britain has a choice: either to help to close the prison or to stand idly by as the endless news coverage of men in orange jumpsuits inflames another tranche of angry youths. The naysayers suggest that bringing some of the prisoners to Britain would be an invitation to dangerous terrorists. With respect, this view is based on a misapprehension of the facts.

I should reveal my own bias: I have visited Guantánamo 22 times, working with the charity Reprieve, to try to reunite scores of prisoners with their legal rights.

So why should the British Government help in this endeavour? First, there is the moral imperative for action. Twelve years ago I voted for Mr Blair too. It is a pity he lost contact with his own moral compass. Britain became complicit in laying the ugly road to Guantánamo. For example, Reprieve represents Binyam Mohamed, a London resident who had to endure two years of torture in Morocco and Afghanistan’s “dark prison”. The British security services knew that he had been the subject of extraordinary rendition by the US, but did nothing to help him until ordered to do so by a British court. Binyam remains in Guantánamo today; it is only right that Britain has now called for his return home.

Second, the reality of Guantánamo is very different to Mr Bush’s version of events. True, there is a handful of prisoners there who have boasted of terrible crimes, such as masterminding the 9/11 attacks. But Khalid Sheikh Mohammed is going to get an American trial at long last, and he is hardly on the shortlist for transfer to Britain.

Those who believe that Guantánamo Bay is chock-a-block with the worst terrorists in the world have a touching faith in Mr Bush’s judgment. More than half of the prisoners there were not seized in Afghanistan at all, let alone “on the battlefield” as Mr Bush assured us – and as The Times repeated in an otherwise admirable editorial two days ago. Rather, they were grabbed in Pakistan and sold to the US for bounty.

There is Ayman al-Shurafa, a Palestinian refugee who has been cleared for release for two years. This means that even the US military has determined that he poses no threat, yet he cannot go home because the Israeli Government will not allow it. Given what is happening in Gaza, perhaps that is not such a bad thing, but those who demonstrated outside the Israeli Embassy in London this week should spend equal time urging Britain to give this harmless young man a home.

Ahmed Bel Bacha is another prisoner who has long since been cleared. He cannot go back to Algeria because his life has been threatened both by the regime (for refusing to serve any longer in a repressive army) and by the Islamic opposition (for being in the military in the first place). Ahmed found a safe haven in Britain for some years. He worked in a Bournemouth hotel, servicing John Prescott’s room during the 1999 Labour Party Conference. Perhaps Mr Prescott can give him a reference – after all, he left Ahmed a hefty tip and wrote him an effusive letter of appreciation.

The British are perfectly capable of sorting out which prisoners can safely come here. They could begin by looking at the 60 homeless prisoners whom the US military have found to be no threat to anyone.

Nobody expects the British Government to take dozens of people, but although Mr Bush created many of our problems singlehandedly, the solution calls for communal action. Germany, Portugal and Spain have already stepped forward. But Britain should be a leader among Europeans, rather than the sheep that follows the flock.

I firmly believe that the prisoners whom we have exhaustively investigated represent no danger to Britain. So far, Reprieve has represented 13 people who have been returned to the UK from Guantánamo Bay. Mr Bush said each of them was dangerous. Newspapers howled at the threat posed by their release. Yet several years have gone by and not a misdemeanour has been committed by any of them. Most have quietly got on with their lives – apart from Moazzam Begg, who has published a book and toured the country preaching a sermon of reconciliation and understanding.

There were indications this week that the British Government wants to do the right thing by the Guantánamo prisoners. For this, it should be congratulated rather than condemned.

El ex ministro de Exteriores Josep Piqué indicó el 3 de diciembre en la Universidad Complutense que en febrero de 2002 él no sabía “lo que iba a pasar en Guantánamo después”. Piqué formó parte del grupo que, según los documentos publicados por el EL PAÍS, decidió que Estados Unidos usara aeropuertos españoles para transportar a prisioneros detenidos ilegalmente en Afganistán hacia la base de Guantánamo. El entonces ministro de Exteriores, al igual que otros funcionarios del ministerio y Presidencia parece que no tuvieron tiempo de informarse bien. Porque, de hecho, sí se conocían cosas inquietantes sobre el tratamiento a prisioneros de Estados Unidos en la base de Bagram (Afganistán) y vuelos a Guantánamo en 2002.

Los primeros detenidos llegaron a Guantánamo desde Afganistán en enero de 2002, sin acusación, sin proceso, sin respetar el hábeas corpus. Tres días después de los primeros traslados a Guantánamo, Amnistía Internacional pidió a Estados Unidos que respetase los derechos humanos fundamentales de los detenidos en el documento Amnistía Internacional pide a Estados Unidos que ponga fin a la situación de indefinición jurídica de los prisioneros de Guantánamo (AMR 51/009/2002)

El 28 de mayo de 2002, Human Rights Watch escribió al entonces secretario de Defensa Donald Rumsfeld, arquitecto del uso de torturas y violencia en los interrogatorios, reiterándole la preocupación debido a que “el Gobiernos de Estados Unidos no está todavía cumpliendo con los requerimientos de la legislación sobre derechos humanos y derecho internacional humanitario para determinar la situación legal y la futura disposición de las personas detenidas en la base de Guantánamo y en Afganistán y zonas aledañas”.

Estos son sólo dos ejemplos de otras denuncias. Para 2003 Guantánamo ya alojaba más de 600 prisioneros sin acusación ni proceso. El Anuario de Human Rights Watch 2002 denunciaba encarcelamientos ilegales y abusos por parte de Estados Unidos. http://www.hrw.org/legacy/wr2k2/us.html.

Dado que en 2002 el presidente Aznar y el ministro de Exteriores y sus funcionarios tenían prisa por agradar al presidente George W. Bush quizá no buscaron los datos. Pero en 2003 la información ya era abundante. EE UU encarcelaba a personas sin respetar la Convención de Ginebra. Creó comisiones militares especiales para juzgar a los ciudadanos no estadounidenses. Al mismo tiempo, altos cargos de Washington argumentaban que los prisioneros de Guantánamo, y luego de Abu Ghraib, eran “combatientes enemigos” (una figura inexistente en el Derecho) que no estaban adscritos a ningún Estado. Por lo tanto, estas personas no tenían derecho a que se aplicaran las convenciones internacionales.

En 2002 había evidencias suficientes para no autorizar vuelos secretos con detenidos ilegales. Piqué no puede argumentar desconocimiento. Por su parte, el Gobierno de Rodríguez Zapatero tiene que clarificar si desde 2004 -cuando los datos sobre tortura eran manifiestos- conocía que los vuelos continuaron o no ha tenido control sobre qué hace Estados Unidos en los aeropuertos españoles.

Among Barack Obama‘s many campaign promises, the one whose fulfillment is anticipated most around the world is the closing of the U.S. detention facility at Guantanamo Bay, Cuba. Not surprisingly, public debate has begun on how to extract the United States from this legal and security quagmire. Sound recommendations include the need for a fresh review of all detainee files followed by a determination of who can be released and who must be brought to justice.

The debate unfortunately includes murky, fearful claims of a “third category”: individuals who have not committed crimes but are perceived as “too dangerous to release.” Some observers — including some who have written in The Post — contend that the Obama administration ought to establish yet another system of detention to hold such individuals indefinitely without charge. This recommendation strikes us as exactly what is done by countries not governed by the rule of law, and it is too similar to the Bush administration policies that got us into this predicament. Our current legal system works, and we should use it.

All along, a primary objection to Guantanamo has been its institutionalization of detention without charge. To propose a new scheme of detention as part of the policy solution to closing Guantanamo would perpetuate one of the most delegitimizing aspects of the facility. Such a system would be viewed as another departure from traditional U.S. values and would continue to serve as a recruitment tool for our enemies while alienating our friends and allies.

If the Obama administration listens to those pushing the fear factor, we risk essentially moving Guantanamo to the United States, not closing it. The new detention system would result in more years of legal challenges. While at the outset such a system might be intended only for those “very dangerous” people said to be impossible to prosecute or transfer, it could also soon be filled with those merely difficult to release or hard to prosecute, or with those who the government fears could win acquittal in court.

Instead, in his inaugural address, President Obama should announce a date for closure of Guantanamo as a detention facility and introduce a blue-ribbon panel of eminent Americans tapped to review all detainees’ files. After years of an administration that called those detained “the worst of the worst” but released more than 500 of them, we need trusted figures to tell us exactly who is there. Obama should ask the panel to classify each detainee in one of two categories: those who should be prosecuted through the U.S. criminal justice system and those who should be released.

No “confessions” or information gleaned through torture will be admissible, so in some cases fresh evidence will need to be gathered. For some, such as Khalid Sheik Mohammed, there are standing indictments; for others, FBI agents and prosecutors will need to build cases — as is often done with crimes that occurred overseas years before. Certainly there are legal challenges to overcome, and no one can promise that every person who is prosecuted will be put away forever. But consider the record of the criminal justice system in prosecuting international terrorism cases: Since 2001, a Human Rights First study found, our courts have dealt effectively with more than 100 such cases and have rendered 145 convictions.

For those who can be released, the Obama administration ought to forge a “grand bargain” to make sure they are moved as quickly as possible to countries where they are not at risk of torture. In recent days, senior European diplomats have indicated a willingness to help solve what they now view as a shared problem. As part of the bargain, the United States would need to accept some of those detainees who are released. (Most often mentioned are the Uighurs, who are at risk of persecution by Chinese authorities.) Finally, together with allies, the Obama administration should develop a plan to manage risks associated with the release of some detainees. This should include biometric and other technologies, as well as assessing reeducation and counseling programs, such as the one established by Saudi Arabia in 2004.

We are not challenging the need to hold in war-zone detention facilities those combatants who are picked up in battlefield settings, such as in Iraq and Afghanistan, assuming that the detentions and treatment take place in accordance with the laws of armed conflict. We are, however, saying that if the federal criminal justice system is used to handle future detainees, that system precludes the use of coercive interrogation techniques. We need to accommodate these prohibitions, and we need professionals who are trained in non-coercive techniques and can be deployed at a moment’s notice.

The next administration should develop a program to create a cohort of interrogators with language skills, drawing lessons from experienced professionals to interview terrorism suspects. Never again, if our country is attacked, should we frantically engage in techniques that our enemies have used against our military personnel in wartime. We are better than that. We can do better than that. We must prepare to do better than that.

Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic triumphalism, you’d think that Guantanamo is as good as shuttered. President-elect Barack Obama has reiterated his campaign promise to close it, and some self-described advisers talk as though he’ll wave a magic wand on Jan. 20 and a problem that has bedeviled this country for seven years will evaporate.

Closing Guantanamo won’t be easy, at least not if Obama means to change the substance of American detention policy rather than merely altering its geography. Obama could, to be sure, fulfill his promise simply by moving detainees to a different facility while continuing to hold them as “enemy combatants.” The challenge of closing Guantanamo would then come down to a series of logistical and administrative questions.

Solving the Guantanamo problem means making important decisions about detention policy in combating terrorism more generally: When, if ever, should the United States engage in preventive detention of terrorism suspects? If and when it does, should it treat them as enemy combatants under the laws of war or under some other body of law, perhaps a new detention statute? What rights should they have? What should the government have to prove about them, to what standard of proof, and in what sort of forum?

Notwithstanding the idea projected by some members of his camp that closing Guantanamo is simply a matter of will, Obama cannot just wish these questions away. Indeed, they defy answers in the absence of a systematic and rigorous review of the detainee population itself, including the classified information about each prisoner. This process, carried out properly, will not take place instantly.

There are three major groups of detainees at Guantanamo, each presenting distinct policy problems. For starters, there are detainees who could face trial. Most people regard criminal prosecution as the best means of neutralizing terrorism suspects and justifying their long-term detention, and some people regard trial as the only legitimate means of locking up America’s enemies. But how big is the group that might plausibly face charges? And to what extent does its size depend on which forum the government uses for prosecution? Is it a much smaller group if America tries these people in federal courts or courts-martial than if it continues using President Bush‘s much-derided military commissions? Without knowing the answer to these questions, one cannot accurately assess the costs and benefits of America’s trial options.

Second, roughly 60 detainees have been cleared for release or transfer from Guantanamo but are stuck there because of fears of mistreatment at the hands of their own governments. Will Obama have an easier time than Bush in persuading third countries to accept these detainees, particularly if he accepts a few of them into the United States? That may well be the case, but without serious diplomatic engagement over the question, we simply can’t know how intractable this problem will prove to be. The ruling yesterday by a federal judge in Washington that five of six detainees in one case were held unlawfully raises the additional question of how many detainees should simply be released.

Third and most troublesome are the detainees too dangerous to be released but who cannot face criminal charges. How many, if any, this group contains will ultimately shape Obama’s policy. Detainees who pose a grave national security threat might be unprosecutable for a variety of reasons: because of deficiencies in the criminal law as it stood in 2001, because evidence against them would not stand up in court, because the government might not have enough evidence to convict or because it obtained key evidence under coercive conditions. If there are only a few such detainees, and the danger they pose seems manageable, those of us who have advocated a preventive detention system should reconsider our position. On the other hand, some human rights advocates acknowledge privately that they may reconsider their categorical opposition to preventive detention if the group proves substantial and the danger it poses too significant to ignore. Right now, we can only guess at this group’s size.

It matters enormously, in short, who each detainee really is. Only a true ideologue — and Obama shows no sign of being that — would develop a policy concerning Guantanamo without studying the population carefully and thinking these questions through. It’s reassuring simply to assert that these cases present no tension between America’s needs and her values. But that judgment is at least premature and may well prove dead wrong. In the short term, it does an injustice to the outgoing administration, many current and former members of which have struggled with these questions over seven long years. It also disserves the incoming administration, which will soon inherit detainees who defy such sloganeering and whose handling will require wrenching choices with no easy answers.

“I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.”

That unequivocal passage from President-elect Barack Obama‘s first extended interview since the election, broadcast on “60 Minutes” Sunday night, was a big step toward healing the damage that the Bush administration has done not just to our nation’s image but to its soul.

Amid the excitement of the election and the urgency of the economic crisis, it has been easy to lose sight of the terrorism-related “issues” that defined George W. Bush‘s presidency and robbed America of so much honor, stature and goodwill.

I put the word issues in quotation marks because torture can never be a matter of debate. Yet the Bush administration sought to numb Americans to what has traditionally been seen as a clear moral and legal imperative: the requirement that individuals taken into custody by our government be treated fairly and humanely.

This doesn’t mean handling nihilistic, homicidal “evildoers” with kid gloves. It means being as certain as possible that the people we are holding are, indeed, real or would-be terrorists, not unlucky bystanders; and treating these detainees in accordance with international law, as we would expect detained U.S. personnel to be treated.

At Guantanamo, at Abu Ghraib and in a little gulag of secret CIA prisons overseas, the Bush administration failed to live up to these basic responsibilities and thus sullied us all.

We will look back on the Bush years and find it incredible, and disgraceful, that individuals were captured in battle or “purchased” from self-interested tribal warlords, whisked to Guantanamo, classified as “enemy combatants” but not accorded the rights that that status should have accorded them, held for years without charges — and denied the right to prove that they were victims of mistaken identity and never should have been taken into custody.

A new study by researchers at the University of California at Berkeley, based on interviews with 62 men who were held for an average of three years at Guantanamo before being released without being accused of a crime, found that more than a third said they were turned over to their American captors by warlords for a bounty. Those who reported physical abuse said most of it occurred at the United States’ Bagram air base in Afghanistan, where about half the men were initially held before being taken to Guantanamo.

Two-thirds of the former detainees reported suffering psychological problems since their release, and many are now destitute, shunned by their families and villages. None has received any compensation for the ordeal, according to the report, titled “Guantánamo and Its Aftermath.”

Years from now, we will be shocked to see those pictures of naked prisoners being humiliated and abused at Abu Ghraib — and we will be ashamed of a U.S. government that punished low-level troops for their sadism but exonerated the higher-ups who made such sadism possible.

Years from now, we will know the full truth of the clandestine, CIA-run prisons where “high-value” terrorism suspects were interrogated with techniques, including waterboarding, that both civilized norms and international law have long defined as torture. From what we already know, it’s hard to say which is more appalling — the torture itself or the tortured legal rationalizations that Bush administration lawyers came up with to “justify” making barbarity the official policy of the U.S. government.

Obama’s clarity on the issues of Guantanamo and torture stands in contrast to his necessary vagueness about how he will deal with the economic crisis. Torture is wrong today and will still be wrong tomorrow, whereas today’s economic panacea can be tomorrow’s drop in the bucket. Who would have thought that these “war on terror” issues would be the easy part for the new president?

Not that easy, though. More reports like the UC-Berkeley study will come out, but this is not a task that can be left to academic researchers alone. The new Obama administration has a duty to conduct its own investigation and tell us exactly what was done in our name. Realistically, some facts are going to be redacted. Realistically, some officials who may deserve to face criminal charges will not. But to restore our national honor and heal our national soul, we at least need to know.

There’s someone I’d like to introduce to President Bush. Also to Chief Justice John Roberts and Sen. John McCain. His name is Huzaifa Parhat, and that get-together might be tricky to arrange. Parhat is also known as ISN (Internment Serial Number) 320 at Guantanamo Bay.

Parhat is Uighur, a Muslim ethnic minority group from western China. He fled China for Afghanistan, and, when the camp he was living in there was bombed by U.S. forces, went to Pakistan. For a bounty, Parhat was turned over to U.S. authorities and shipped to Guantanamo.

He has been held as an enemy combatant for more than six years — even though the government concedes he was never a member of the Taliban or al-Qaeda and never took part in any hostilities against the United States.

Indeed, Parhat’s detention is based on evidence so flimsy that a federal appeals court here told the government it had to free Parhat or come up with something more.

The ruling was remarkable because its author, Clinton appointee Merrick Garland, was joined by two conservatives, Reagan appointee David Sentelle and George W. Bush appointee Thomas Griffith. It was remarkable, too, as the product of a system stacked against alleged enemy combatants — so stacked that the Supreme Court recently declared it an inadequate substitute for full court review.

Detainees cannot have lawyers for the Combatant Status Review Tribunals that decide whether they are enemy combatants. They can be held on the basis of hearsay evidence or classified material they never see. The government’s evidence is presumed valid. Detainees may call witnesses, but only those who are “reasonably available.” Few are.

The appeals court review — Parhat’s case was the first to reach this stage — is similarly tilted. It cannot consider evidence favorable to detainees found after the tribunal has ruled. It is required to presume that the government’s evidence is accurate. It must uphold the determination if it is supported by a mere “preponderance” of the evidence.

The government’s case against Parhat amounted to wisp piled on wisp: that he was “affiliated with forces associated with” al-Qaeda and the Taliban. The Afghan camp where Parhat lived and received Kalashnikov rifle training was run by another Uighur who was a leader of the East Turkestan Islamic Movement (ETIM); ETIM has links to al-Qaeda.

Much of the material supposedly proving this is classified, but the appeals court dismissed it as fuzzy, duplicative and poorly sourced. It mocked the evidence as worthy of Lewis Carroll‘s “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.” Carroll notwithstanding, the court said that “the fact that the government has ‘said it thrice’ does not make an allegation true.”

It is possible, I suppose, to understand the Parhat case as a vindication of the rule of law. The review process worked, eventually. Cold comfort to Parhat, who has sent word to his wife that she should consider him dead and remarry. His lawyer, Sabin Willett, told me that Parhat is convinced he will never be allowed to leave Guantanamo.

Indeed, even as the government insists he is an enemy combatant, it has also, oddly, cleared him for release. But, like the other Uighurs at Guantanamo, Parhat has no place to go. Returning to China is not an option; no other country will take him.

And so, this is what I would say in the meeting that will never happen:

Sen. McCain, you called the Supreme Court’s recent Guantanamo ruling, which gives Parhat and other detainees the chance to make their case directly to a federal judge, “one of the worst decisions in the history of this country.” As someone who spent so long in captivity, could you tell Parhat why it would have been so terrible to let a court hear his case — years ago?

Mr. Chief Justice, in that decision, you termed the rules under which Parhat was held “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” True enough. Please explain to Parhat how those protections were adequate.

And Mr. President, Parhat once imagined that America would help the Uighurs, a group your own State Department says has been subjected to “official repression” by the Chinese government. Could you tell him that America has treated him fairly?

If not — and it’s hard to see how you could — please find a way, before you leave office, to let him go.

Before his show trial in Hungary in 1948, Robert Vogeler spent three months in a cell sleeping on a board that hovered just above two inches of water. Day and night a bright light bathed his cell, and even then someone would bang on the wall next door just to make sure he couldn’t get any sleep. “It is just a question of time before you confess,” he said afterwards. “With some it takes a little longer than others, but nobody can resist that treatment indefinitely.”

And so Vogeler, who was arrested for spying, buckled under the pressure and played his role in the gruesome farce of Stalin’s postwar purges in eastern Europe. “To judge from the way our scripts were written,” wrote Vogeler shortly after his forced confession, “it was more important to establish our allegorical identities than to establish our ‘guilt’. Each of us in his testimony was obliged to ‘unmask’ himself for the benefit of the [Soviet-led] press and radio.”

A similar script, it has long been clear, has been written at Guantánamo Bay, although this time the lines were for the prosecution rather than the defence. The point of these detentions has never been to see justice done, but rather to provide a teachable moment about the lengths and depths the American state would go to pursue its perceived interests in the war on terror. It was to find a place in which America could operate above and beyond not only international law but its own – a display of unfettered power not merely indifferent to, but openly contemptuous of, global and local norms.

It is a brutal allegory in which Guantánamo is not the exception but the rule: a grotesque exemplar of the Bush administration’s reflexive and opportunistic response to the terrorist attacks of 9/11, from the bombing of Iraq to the phone-tapping of its own citizens. Like Abu Ghraib and the “black sites” of rendition, the violations that have taken place there are systemic and systematic. Like the broader war on terror, they have been characterised by criminality and ineptitude. The camp has not hosted a single trial, and only 19 of the remaining 270 detainees have been charged.

“To protest in the name of morality against ‘excesses’ or ‘abuses’ is an error that hints at active complicity,” wrote Simone de Beauvoir, referring to French atrocities in Algeria. “There are no ‘abuses’ or ‘excesses’ here, simply an all-pervasive system.”

Detain, bomb, invade, torture and spy now – ask questions later. Such have been the impulses of the Bush years. But “now” inherits a past and bequeaths a legacy. “Later” keeps arriving with answers for which a largely quiescent if not compliant American public appears to have little stomach. A power grab for the state; a black hole for legality; a free rein for the military; a vacuum for democracy. Such have been the hallmarks of the Bush years.

And like so much else in these twilight months of this administration, the warped logic that underpins Guantánamo is unravelling at great pace. The recent supreme court ruling that inmates have the same rights to habeas corpus protection as “enemy combatants” held on US soil has shed its final fig leaf. Meanwhile, last week’s congressional testimony and the dissenting voices of some of the inmate’s military lawyers bear witness to how low the administration has stooped and how high the decision-making has gone. “The laws and constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony Kennedy wrote for the supreme court majority. Maybe so. But political cultures are not. They are feathers for every wind that blows, vulnerable to demagogue and democrat alike.

“To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is’,” Kennedy continued. But that is precisely what has been happening these past seven years.

Documents released by congressional investigators last week show interrogators have not so much pushed the envelope, as shredded and torched it. Mark Fallon, the deputy commander of the defence department’s criminal investigation taskforce, warned Pentagon colleagues in an email in October 2002 that the interrogation techniques they were discussing, and later implemented, would “shock the conscience of any legal body”. “This looks like the kind of stuff congressional hearings are made of,” he said. “Someone needs to be considering how history will look back at this.”

In the same month Jonathan Friedman, a CIA counter-terrorism lawyer, told military and intelligence officials that “torture is basically subject to perception”. “If the detainee dies,” continued Friedman, “you’re doing it wrong.”

Throughout, innocence, guilt, facts and evidence have been little more than technicalities. Indeed, the enterprise has been a huge faith-based initiative – guided by the notion that if you believe you are doing the right thing, it doesn’t matter what you actually do.

Colonel Morris Davis, the former chief prosecutor for Guantánamo’s military commissions, recalled a meeting he had with Pentagon general counsel William Haynes, who oversees Guantánamo’s tribunal process, about the forthcoming trials of the detainees. “[Haynes] said these trials will be the Nuremberg of our time,” said Davis. Davis then pointed out that the handful of acquittals at Nuremberg had given the proceedings a sense of legitimacy and credibility that across-the-board convictions never would have.

‘I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis told the Nation. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

Over the past four years at least five military prosecutors have resigned from their jobs or from their cases at Guantánamo because they felt their integrity would otherwise be compromised, citing tainted evidence obtained under torture and political interference. As De Beauvoir’s quote indicates, there is nothing uniquely American about any of this. The US programme was modelled on Soviet techniques and has been made possible by the cooperation of other nations, including Britain, that have colluded with rendition. According to the New York Times, the former director of the CIA’s clandestine service described Poland, where a large amount of the torturing took place, as “the 51st state”.

Put the British in Ireland or the Belgians in the Congo and you get the same result. Gordon Brown’s bid for 42-day detention without charge fits the mould perfectly. Occupations abroad ineluctably dovetail with the erosion of liberties at home. The only difference seems to be that, on paper at least, the US has set itself higher standards – a fact that exhausts its one truly renewable resource: innocence. “How on earth did we get to the point where a US government lawyer would say that … torture is subject to perception?” asked Carl Levin, the chairman of the Senate armed services committee, last week. How indeed?

As one inmate warned a US diplomat after he was finally released from prison following torture and a show trial. “Every individual American should realise that what happened to me could happen to anybody.” His name? Robert Vogeler.

Last week’s Supreme Court decision in Boumediene v. Bush settled a key constitutional issue: all prisoners detained at Guantánamo Bay are constitutionally entitled to bring habeas corpus in federal court to challenge the legality of their detention.

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president. (Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

Yet Boumediene is rich in constitutional ironies. In addressing whether non-Americans detained outside the United States are entitled to habeas corpus, the court passed up an opportunity to clarify the law, and instead based its reasoning, flimsily, on a habeas corpus case that was decided just after World War II. This is too bad, because issues as important as habeas corpus should turn not on fancy intellectual footwork but on a candid appraisal of the relevant facts and legal principles.

At the core of the dispute in Boumediene is the Constitution’s suspension clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Unfortunately, the text neglects to specify the grounds for granting habeas corpus. And historical precedent is inconclusive on the question of when it should be available to aliens held in American custody outside the United States.

In Johnson v. Eisentrager, in 1950, a case involving illegal German combatants from World War II, the court held that citizens could bring habeas corpus whether they were detained in the United States or abroad. Aliens, on the other hand, had the right only if they were detained within the United States. In writing the Eisentrager decision, Justice Robert Jackson mentioned the practical and financial difficulties of prosecuting enemy aliens overseas, but gave them little weight.

Now, in his majority opinion in Boumediene, Justice Anthony M. Kennedy has made that minor issue in Eisentrager into a key element of the case, acknowledging that the government may have to go to some trouble, and expense, to ensure that the prisoners at Guantánamo are able to challenge their detentions. Boumediene need not have rested on this sleight of hand.

Nothing in the suspension clause distinguishes citizens from aliens. Likewise, the due process clause extends its constitutional protections to all “persons,” citizens and aliens alike. If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens. Viewed this way, the court did not need to decide whether or not Guantánamo was American territory. Its ambiguous status no longer matters. Eisentrager disappears on originalist grounds.

Overruling Eisentrager on this point would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant.

The defendants in Eisentrager, German war criminals, admitted being enemy combatants. The six plaintiffs in Boumediene, accused of plotting an attack on the American Embassy in Bosnia, claim they are not. They should be entitled to challenge both the government’s definition of an enemy combatant and the factual basis of their arrest. And they should be able to do so, as the court stressed, under standard habeas corpus procedures that allow them to present evidence and confront witnesses, and not under the paltry procedures outlined by the 2006 Military Commissions Act.

If found to be enemy combatants, they can be held for the duration of the war and interrogated, if desired, as any other detainees. If not, they must be tried for some particular offense or released.

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

We shouldn’t be surprised to hear that George Bush dined with a group of historians on Sunday night. The president has spent much of his second term pleading with history. But however hard he lobbies the gatekeepers of memory, he will surely be judged the worst president the United States has ever had.

Even if historians were somehow to forget the illegal war, the mangling of international law, the trashing of the environment and social welfare, the banking crisis, and the transfer of wealth from rich to poor, one image is stamped indelibly on this presidency: the trussed automatons in orange jumpsuits. It portrays a superpower prepared to dehumanise its prisoners, to wrap, blind and deafen them, to reduce them to mannequins, in a place as stark and industrial as a chicken-packing plant. Worse, the government was proud of what it had done. It was parading its impunity. It wanted us to know that nothing would stand in its way: its power was both sovereign and unaccountable.

Three days before Bush arrived in Britain, the US supreme court ruled that the inmates at Guantánamo Bay were entitled to contest their detention in the civilian courts. This is the third time the supreme court has ruled against the prison camp, but on this occasion Bush cannot change the law: the court has ruled that the prisoners’ rights are constitutional.

Symbolically the decision could scarcely be more important. Practically it could scarcely be less. The department of defence can transfer its prisoners to an oubliette in another country, where the constitution’s writ does not run. The public atrocity of Guantánamo Bay has provided a useful distraction from something even worse: the sprawling system of secret detention camps the US runs around the world.

We don’t, of course, know much about this programme. Bush first acknowledged it in September 2006. “Of the thousands of terrorists captured across the world, only about 770 have ever been sent to Guantánamo.” Other suspects, he said, were being “held secretly” by the CIA. “Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.” He went on to claim that all the secret prisoners had now been transferred to Guantánamo Bay.

Several lines of evidence suggest that this claim was false. The CIA appears to have overseen or controlled, and in some cases appears still to be running, black sites in Poland, Bulgaria, Romania, Ukraine, Macedonia, Kosovo, Morocco, Libya, Egypt, Djibouti, Somalia, Ethiopia, Iraq, Jordan, Afghanistan, Pakistan, Thailand and, possibly, Diego Garcia. The US appears to be using ships as secret prisons. In just two years the CIA ran 283 flights – which the Council of Europe believes were used for transporting secret prisoners – out of Germany alone. It admits that it possesses 7,000 documents about its ghost detention programme. Are we to believe all this was done for the 14 men transferred to Guantánamo Bay? In Iraq, the US now admits to holding 22,000 prisoners without charge in its own facilities, some of whom are known to be kept away from the Red Cross and other visitors.

Apart from those moved to Cuba, hardly anyone, so far, has come out of this system. At the end of last year salon.com interviewed Muhammad Bashmilah, who was arrested and tortured by Jordanian police, handed to the Americans, flown to an unknown country in autumn 2003, and held secretly by the CIA until he was transferred to Yemeni custody in May 2005. He reports that he was kept in a cell about the size of a transit van throughout the 19 months of his confinement, without any human contact except during interrogation. The lights and a source of white noise were left on permanently. Driven mad by isolation and sensory deprivation, he tried to kill himself several times. Eventually, when it became obvious even to the CIA that he had nothing to do with terrorism, he was handed over to the Yemeni government, who held him for another year until he was released without charge.

Lawyers for some of the men transferred to Guantánamo Bay claim that, while in secret detention, their clients were left hanging from the ceiling by their wrists, beaten with electric cables, yanked around on a dog’s leash, chained naked in a freezing cell, and doused with cold water. “The CIA worked people day and night for months,” one prisoner reports. “Plenty lost their minds. I could hear people knocking their heads against the walls and doors, screaming their heads off.”

Could it be worse than this? Yes. In 2003, a US official admitted to the Sunday Telegraph that the CIA was detaining and interrogating children. Discussing two boys aged seven and nine held in secret detention by the CIA, the official explained: “We are handling them with kid gloves. After all, they are only little children, but we need to know as much about their father’s recent activities as possible. We have child psychologists on hand at all times and they are given the best of care.” According to another prisoner, the boys had already been tortured by Pakistani guards. A former CIA official told the New Yorker that “every single plan [in the secret detention programme] is drawn up by interrogators, and then submitted for approval to the highest possible level – meaning the director of the CIA. Any change in the plan – even if an extra day of a certain treatment was added – was signed off by the CIA director.”

Never mind detention without trial; this is detention without acknowledgement. When men and women disappear into this system, neither they nor their families know where they are. The Red Cross cannot reach them; they are beyond the scope of the law. They have been disappeared in the Latin American sense of that word.

Do I need to explain that this treatment breaks just about every article in the Geneva conventions? Do I need to tell you that – without charges, trials, lawyers, scrutiny or even recognition – it is just as likely to net the innocent as the guilty? In 2006 George Bush maintained that “these aren’t common criminals, or bystanders accidentally swept up on the battlefield – we have in place a rigorous process to ensure those held at Guantánamo Bay belong at Guantánamo”. But a new and detailed investigation by the McClatchy newspaper group has found that many of them were indeed either common criminals or bystanders, or men sold to the authorities in order to settle a feud. Who knows how many innocent people are going out of their minds in the CIA’s secret prisons today?

Along with its innocent victims, the US government has locked itself into this system. As the justice department has argued, these prisoners cannot be released in case they describe the “alternative interrogation methods” (the euphemism it uses for torture) the CIA used on them, which could “reasonably be expected to cause extremely grave damage”. Like almost everything Bush has done, this programme promises to backfire. George Bush will be remembered not only for the lives he has broken, but also for smashing everything he claimed to defend.