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.
Karen Greenberg, the executive director of the Center on Law and Security at the NYU School of Law, the editor of The Torture Debate in America and co-editor of the forthcoming The Enemy Combatant Papers.