To the detainees at Guantanamo, their imprisonment is about time. Time affects them in two profound ways. First, the judicial delay in resolving their cases, very effectively orchestrated by government lawyers, gives rise to a claim that they should be released on those grounds alone, regardless of any other factor. Second, time eats their souls.
I’ve been involved in the representation of three detainees at Guantanamo Bay, Cuba, since around mid-2004, just after the Supreme Court first said that they had a right to access to the courts of the United States. To me, that’s a long time — nearly five years of working on these cases makes them the longest in my career as a criminal defense lawyer and human rights teacher and practitioner. And my time does not begin to match that of the men themselves, most of whom arrived there in early 2002, the year the euro started into circulation and Enron crashed and burned.
President Obama has ordered Guantanamo to be closed within a year of his inauguration, and set up a team to review the file of each detainee to determine whether to charge, release or continue to hold him. We hear that this process is complicated and that it will take time. The parallel judicial process, too, grinds forward at its usual glacial pace, and the 240 men at Guantanamo are waiting — seven years and counting.
The amount of time the detainees have been imprisoned at Guantanamo, and the conditions of their confinement, doesn’t seem to figure much in the government’s calculations about the fairness of the situation. It’s as though each court decision, or even each presidential administration, gets a do-over, a legal mulligan that allows them to start counting the detainees’ time in detention from zero. There was a vague nod by the prior administration in the direction of the Geneva Conventions, the law of war, which permits holding true prisoners of war until the end of hostilities. But that administration asserted that the hostilities in question are the war on terror, a long war — a war that may never end. One can only hope that the new administration will not adopt the illegitimate trope of the last one.
In law, time can trump possible guilt. In a criminal case, if the defendant is not given a speedy trial, he must be freed, regardless of his possible eventual guilt. That hardly ever happens, but the rule is there for a reason. The right to liberty is a sacred commitment of our society, and keeping someone in jail for too much time without a trial or sufficient grounds for detention goes against our grain.
The right to a speedy trial and the protection against deprivation of liberty without prompt due process are deeply embedded in our Constitution and international human rights law. The U.S. Supreme Court held in 2001 that an immigrant facing indefinite detention without the possibility of deportation must eventually be released. The justices found that six months was the outer limit to hold someone before the deportation or release.
The European Court of Human Rights, which has reviewed large numbers of cases involving delays in trials or overall proceedings, has found that criminal proceedings lasting more than four years are far too long. And all human rights tribunals that have addressed the issue have found that the right to a “prompt” determination of grounds to be held, the right to habeas corpus that the detainees have fought for six years to obtain, is measured in days, not years.
A few days ago, the Pentagon released its own little-noticed study on compliance by Guantanamo with the law of war, ordered by President Obama in his first day in office. The law in question is one of the most basic; it protects, among other things, against “outrages upon personal dignity, particularly humiliating and degrading treatment.”
The Pentagon study found that Guantanamo complied with Common Article 3. It found that conditions in the concrete and metal, one-person-to-a-cell, virtual isolation in the prison “camps” 5, 6 and 7 comply with Geneva Conventions requirements. In a stunning understatement, the report suggested that in “certain camps” (read Camps 5, 6 and 7) “further socialization is essential to maintain humane treatment over time.” That’s their only mention of the seven years that most of the men have spent in that tropical hellhole. Time is cruel — it eats their souls.
Seven years — too much time — has passed for the men still at Guantanamo. Up to 60 may be tried for their crimes, but the rest will not. Their time in custody should itself be the single greatest factor justifying their release. It’s about time.
Richard J. Wilson is professor of law and director of the International Human Rights Law Clinic at American University’s Washington College of Law. He will speak about his experience representing Guantanamo detainees at 3:30 p.m. March 26 at the Buchanan Alumni House at the University of Maine. The talk is sponsored by UMaine’s School of Policy and International Affairs.