‘There is No Law There At All’

People who have visited Gitmo over the years say the conditions there have improved dramatically. If that's true, why close it down at all?
Most reasonable observers do not criticize Guantanamo because of the conditions.  It's a complete red herring.  They criticize Guantanamo because there is no law there at all.  The administration believes that they have complete dominion over these human beings and that no one else, including the Supreme Court, can oversee what they are doing there.  They took the radical position—for the first time—that even the most minimal standards of the Geneva Convention embodied in Common Article 3 (which the United States signed and ratified) do not govern detention there. Look, Common Article 3 requires nothing more than "the judicial guarantees which are recognized as indispensable by civilized peoples." It's not hard to meet.  We have met it for nearly 50 years. Our judge advocates general all testified that our military trains to that standard.  But the administration came along and said they didn't have to use it.  The Supreme Court correctly rebuked them on that.

Just to be clear, if the prisoners are moved to Kansas or to some other facility inside the U.S., the problem of "no law," as you put it, still stands, right? In your mind, the transfer would be the administration's way of changing their venue but not their legal status?
I believe, along with I think most legal analysts, that the detainees have fundamental constitutional rights both in the continental United States and at Guantanamo.  That doesn't mean that they can complain about what kind of food they are being served, or whatever, but it undoubtedly means that if they are facing fake trials, or the death penalty because of a new law passed in an ex post facto fashion to create a new trial system, that they will have those minimal rights.  I severely doubt that the Founders intended to create an all-powerful federal government that could put people to death in trials that lack the fundamental safeguards that distinguish America from the uncivilized world.

I'm getting the impression that in your mind the venue really doesn't matter much. If the Bush administration would be willing to extend all the appropriate rights to these detainees, would you advocate shutting down Gitmo?
I think that Guantanamo is now a foreign-policy disaster of epic proportions.  I think it should be shut down quickly, with the detainees transferred to the United States.  Where appropriate, I think the detainees should be tried by court martial.  Other detainees should be repatriated, or face review in the federal courts or a new national-security court to determine whether they should continue to be detained.

What about your client, Hamdan? How aware is he or are other detainees at Gitmo of the debate going on in the U.S. about the fate of the detention center? How would he greet the news that the facility is being closed?
I can't speak to that, I don't have any idea.  I'm sorry.

© 2007