Growing out of Gitmo

Our colleague Andy Post wrote in defense of keeping the U.S. detention facility in Guantanamo Bay, Cuba, open in his Tuesday column. Today, with the utmost professional courtesy, we write to express profound disagreement in the spirit of public debate.

Guantanamo has become a flashpoint among partisans. In many ways it is emblematic of the much-hated war on terror. It is a stain on international humanitarian law and the very checks and balances the Constitution imposes on the government.

Indeed, blatantly closing Guantanamo would be misguided, due to a myriad of political and legal obstacles. But assuming that advocates of closing the facility desire immediate closure by the next administration and then expect immediate improvements to America’s image is merely an unsophisticated straw man argument. It also assumes away the massive symbolic value that closing Guantanamo would have.

Hyperbole has expectedly crept its way into the debate over Guantanamo. Perhaps to some the facility is equivalent to a Soviet-era Gulag, from a moral standpoint. But in reality the conditions are not. It is also somewhat questionable how much impact closing the facility will have — the base itself will still remain operating. And the concern over the danger some of the detainees hold is not one to take likely. Potentially letting dangerous individuals free is possible.

But the very nature of Guantanamo has made it difficult to determine which detainees are actually a threat or guilty of terrorism. The Supreme Court has slowly been whittling away at the legitimacy of Guantanamo and the justifications for detention. Hamdi v. Rumsfeld ruled the White House does not have a blank check to deny legal process. Hamdan v. Rumsfeld found that the military commissions used to try detainees did not conform to legal code. The administration maintains that the unlawful and potentially violent nature of the accused means that classified intelligence cannot be publicly admitted in court because it would hinder U.S. operations against terrorism abroad.

Perhaps — though four Supreme Court judges concurred with that sentiment. Of course, the conservative reaction to the ruling was typical: Ding! Judicial activism!

Judicial hearings aside, the war on terror, as noted in our previous columns, is very much a battle of perceptions and reputation. Guantanamo has become the single greatest icon of American hypocrisy to many foreign onlookers. This may have most notably been articulated by Gabor Rona, the international legal director at Human Rights First, “The United States is the world’s strongest democracy and led the world in creating — and pressing other governments to adhere to — the international system of human rights and humanitarian laws it now seeks to evade.”

Cutting legal corners is precisely the objective of the Guantanamo detention facility. What is particularly nocuous about the “Gitmo philosophy” is that is so casually undermines the moral perimeters of conflict that have been painstakingly developed throughout human history.

In an iconic fashion, Guantanamo has challenged the foundations of individual human rights — habeas corpus. One of the oldest human rights that was defined in the English-speaking world was the right to challenge governmental power of arrest and detention via the use of habeas corpus laws. Consequentially, this was one of the most central components of the Magna Carta, which was signed by King John in 1215. Moreover, it may be most notable to point out that the U.S. Constitution makes only a single reference to emergencies, in the clause allowing the suspension of habeas corpus in “cases of rebellion or invasion” when “the public safety requires it.” Terrorism does not have the capacity to put the U.S. into such a position — that is the exclusive capability of a policy overreaction.

Perhaps one can borrow a classic example from literature: Ulysses and the Sirens in Homer’s Odyssey. Ulysses is warned that death awaits him and his crew if they listen to the haunting voice of the Sirens, who will lure their ship into the rocks. Thus Ulysses orders his men to tie him to the mast of the ship, and he puts beeswax in the ears of his oarsmen; as they are now protected, they row past the Sirens.

The conduct of Ulysses is often cited to better understand law and rights as strategies of pre-commitment. Democratic states pre-commit themselves to rule of human rights in times of peace, knowing that they will be tempted to relinquish them in times of emergency. The story of Ulysses tells us that human rights are like his beeswax: devices of reason, created in moments of calm, to master temptation in times of hazard.

From Guantanamo Bay, to the perverse torture laws authored by John Yoo; to the covert action of extraordinary rendition and the inept policies of the infinitely broad war on terror have left an indelible stain on the history of the U.S. If not by judicial grievance, Guantanamo Bay detention facility should be closed on grounds of moral homage — an emblematical avowal reminiscent of our founding — that America’s best defense will forever remain the defense of its values.

St. James’ Street welcomes comments at stjamesstreet@mndaily.com.