Lithwick: How Guantanamo Policies Spread to the US

What happens at Gitmo, stays at Gitmo. That was always the hope. When the Bush administration fenced off a dusty little patch of lawlessness in Cuba, the idea was that breaking the law abroad would somehow preclude us from breaking it at home. But last week revealed—yet again—that the worst of Guantánamo was always destined to spill over into the United States. Gitmo's lawlessness is now our own. The prison camp was created to construct a "legal black hole," a place where U.S. and international human-rights law would go to die. The case of 17 Uighurs—Chinese Muslims from western China's Xinjiang region—is one of the blackest chapters of the story. The Uighurs fled Chinese persecution (including forced abortion and banishment) and settled in Afghanistan. The 2001 U.S. bombing raids forced them to move to Pakistan, and they were allegedly turned over by local villagers to American authorities in exchange for a $5,000 bounty per head. They were transferred to Guantánamo more than six years ago and were cleared for release in 2004. The U.S. government credibly feared they would be tortured if returned to China, and since no other country will take them, they have remained at Gitmo all this time.

In September, an appeals court found that one of the Uighurs, Huzaifa Parhat, had been labeled an "enemy combatant" and subject to indefinite detention, based on "bare assertions." The Bush administration has conceded that none of the Uighurs is an enemy combatant. Last week a federal judge in Washing-ton ordered that all 17 Uighurs be freed, immediately, into the care of American supporters. Bush administration officials managed to delay their release in a last-minute petition to the appeals court. These Uighurs didn't just steam into Guantánamo Bay off a Carnival cruise. They were brought here in error and abused in error. And now to remedy that error they will be forced to stay there indefinitely. As Justice Anthony Kennedy wrote in a landmark Supreme Court decision this past summer, "The costs of delay can no longer be borne by those who are held in custody." The Justice Department managed to halt the ruling, by repeating discredited claims that the Uighurs associated with terrorists, and squawking about the perils of bringing Guantánamo to Washington. But in truth, Guantánamo has been in Washington for some time. Newly released military documents prove that two American citizens held for years as enemy combatants at Navy brigs in Virginia and Charleston, S.C., had been interrogated and incarcerated according to the Guantánamo rules, not U.S. law. According to e-mails that surfaced last week, Yaser Esam Hamdi and Jose Padilla were interrogated by the CIA and Defense Intelligence Agency for months and years in the early part of the war on terror, and deprived of light, correspondence and human contact, while their nervous interrogators worried for their sanity.

As has so often been the case when illegal conduct is authorized at Guantánamo, it was military officials who pushed back. Career military personnel were the first to cry foul at prisoner abuse and biased prosecutions at the base. And last week's documents indicate they were openly dubious about what one described as "the 'lash-up' between GTMO and Charleston" when it came to American citizens detained in the United States. Jonathan Hafetz of the ACLU's National Security Project explains that while we may only now be officially discovering that interrogation policy had spread from Guantánamo to the United States, the wall between what was constitutional here and there was never insurmountable: "For years, the administration defended its detention and treatment of prisoners at Guantánamo by asserting that the Constitution did not apply because it was outside the United States. But the documents show the administration was meanwhile secretly trying to create a lawless enclave within the country."

Both presidential candidates have called for the closure of Guantánamo, and when that happens, the remaining prisoners will likely be brought to this country for prosecution, detention or deportation. Once these prisoners go on trial here, we will have to stop thinking of them as "them." It will be harder to tune them out when they are not just nameless men behind barbed wire, but real people with stories and families and names. What happened in secret for six years at Guantánamo will start to redefine what it means to be American. And that's why it's a fitting coda for the whole Gitmo fiasco that former enemy combatants who had no connection to terror or terrorism may someday take up residence in our own backyards.