Gitmo: An Empty, Expensive Symbol of Misguided Vengeance

This article first appeared on the Verdict site.

Let's recap Donald Trump's busy week.

In a statement of staggering moral vacuity, he suggested that Charlottesville was about nothing more than violence and bigotry "on many sides," as though Klansmen, neo-Nazis, and white supremacists were basically the same as those who assembled to resist and denounce them.

Then, after reading a speech that others wrote but he did not believe, he had a televised temper tantrum in which he doubled down on the false equivalence, followed shortly thereafter by a full-tweeted defense of Confederate monuments.

So far, his repeated declarations of idiocy have won him rebukes by, among many others:

And this list, as you probably noticed, includes only those who, by position or ideology, might have been expected at least to withhold criticism.

And so, given this firestorm, it only makes sense that the White House would leak its intentions to take on one of the truly important issues of the day: Expanding the U.S. prison at Guantanamo.

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One of the at that time 80 Al-Qaeda and Taliban detainees wearing an orange jump suit at Camp X-Ray surrounded by heavy security at the Guantanamo Naval Base, US, 17 January, 2002. Thirty more detainees were scheduled to arrive 17 January bringing the total number of detainees at the camp at the time to 110. Date created: 17 January, 2002 ROBERTO SCHMIDT/AFP/Getty

The New York Times recently reported that the White House was reviewing draft Executive Orders that would institutionalize, and increase reliance on, the much-maligned prison.

The Reality of Guantanamo

For many years, the real work that Guantanamo does in American life has been symbolic. The prison was conceived, designed, and built to be the ideal interrogation chamber—inaccessible to the public and unsupervised by the judiciary.

But the Supreme Court allowed prisoners at the base to challenge their detention in 2004 (full disclosure: I was lead counsel in that case, Rasul v. Bush ), and reaffirmed the right in 2008. Since that time, the prison hasn't served its original purpose.

In the meantime, the great majority of prisoners at the base have been released.

Most were sent home by President George W. Bush; a much smaller number were repatriated by President Obama. By the time Obama left office, the prison held only 41 men.

That number has not changed since his successor took over. Having been confined for more than a decade and arrested during a very different security climate, these few prisoners are no longer a source of information, if they ever were. They are merely prisoners. Except that they, unlike other prisoners in the United States, have never been convicted of a crime.

All but a few have never been charged, and most never will.

In the final analysis, therefore, Guantanamo is simply a very small, very expensive prison. And by very expensive, what I really mean is astronomically expensive.

By the end of 2015, the United States had spent nearly $5.7 billion on detention operations at Guantanamo. And that doesn't include the cost of Camp 7, where the so-called "high value" prisoners are held. Costs in 2015 alone were nearly half a billion dollars.

Yet we have plenty of unused federal prison space on the mainland, where we could hold these 41 men in complete security at a fraction of the cost. We pay more than $10 million per inmate per year at Guantanamo; we safely house convicted terrorists at the Supermax facility in Florence, CO, for roughly $78,000 per inmate per year.

Still, despite its exorbitant irrelevance as a prison, Guantanamo is exceedingly important—not as a prison, but as a symbol. To our adversaries, it is a potent symbol of our hypocrisy and a rallying cry for terrorist recruiters, on par with the torture scandal at the Abu Ghraib prison. To our allies, it is an equally potent symbol of our lost values and a sign that we are no longer the country they thought we were.

But to a certain fraction of the American public, it is a symbol of muscular indifference—even hostility—to legal niceties and world opinion. And they are his audience.

The Symbol of Guantanamo

Vowing to keep it—indeed, to expand it, and while we're at it, to do " a hell of a lot worse than waterboarding," as he promised during the campaign—is red meat for his dwindling base. And if there were ever a moment he needed his supporters to be on a foot-stomping, pot banging, media-fed frenzy, now is that time.

By beating the Guantanamo drums, especially in the wake of the tragic attacks in Barcelona, he hopes to drown out some of the criticism he so richly deserves and distract people from his glaring deficits in "stability" and "competence."

And besides, it's not like he has anything better to do, what with North Korea all snug abed. Remember North Korea? A few days ago we were apparently set to nuke them to smithereens.

Then there's Russia. And China. Cybersecurity. The Special Counsel. A collapsing infrastructure. Trade wars. Hate crimes. Racial animosity. The opioid crisis. Rising suicide rates and declining life expectancy. Chronic under-employment.

Yes, by all means, let's rev up Guantanamo, a tiny island prison that inflames our adversaries, infuriates our allies, and drains our treasure without advancing national security one whit. That's just what we need.

Symbols are ubiquitous in politics, and he is not the first politician to seize on a symbol in the hope that it will divert attention from what matters. Indeed, the practice is so common one might fairly take it as shorthand for our political culture—all symbol, no substance.

For that reason, if Guantanamo were purely a symbol, we might be tempted to shrug this off as simply the stuff of American politics. But there is one group for whom the prison is not at all a symbol.

I refer, of course, to the 41 human beings locked in cages, with no realistic hope that they will ever get a fair opportunity to test the lawfulness of their detention. For them, it is very much a prison.

I confess, I represent one of these men. There are many people in this country who will say, with considerable enthusiasm, that my client and all the men imprisoned at our remote Cuban outpost can rot in hell. In fact, a good number, some of whom may comment on this article, will say these people should be tortured first and then made to endure a painful death.

Their insatiable bloodlust, against all rationality, is precisely why he finds the symbol so irresistible and the distraction so welcome. And he always will.

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.

Gitmo: An Empty, Expensive Symbol of Misguided Vengeance | Opinion