JURIST Special Guest Columnist Jonathan Hafetz, Associate Counsel with the Brennan Center for Justice at New York University School of Law, says that the recent suicides of three prisoners at Guantanamo Bay graphically represent and reinforce America's loss of moral legitimacy in its so-called "war on terror" …

The only surprise about the three recent suicides at Guantánamo Bay, the first reported at the prison, is that they took so long to happen. Since early 2002, the United States has tenaciously maintained a lawless enclave at Guantánamo, detaining more than 700 individuals (nearly 500 remain) without charge, without due process, and without legal protections against torture and other abuse. Guantánamo did not just contribute to the suicides; it robbed America of its ability to respond to them with legitimacy and moral force on the world stage.

Guantánamo had already been roundly condemned by the international community and foreign leaders. The United Nations recently called for the prison’s closure, while the Council of Europe condemned the prison and United States detention policies. Last year, the International Committee for the Red Cross described the treatment of Guantánamo detainees as “tantamount to torture.” The recent suicides have inflamed sentiment across Europe and the Arab world, underscoring the urgency of prior warnings about Guantánamo. The insensitive response of U.S. officials, who called the suicides “a good PR move” and “an act of asymmetrical warfare,” have reinforced perceptions about Guantánamo’s lawlessness and disregard for truth.

For the first time in its history, the United States has created and institutionalized a system of indefinite detention without charge. It is not, of course, the cement cell-blocks and barbed wire that make Guantánamo exceptional among U.S. prisons. Rather, it is Guantánamo’s legal foundations — the boundless definition of an “enemy combatant”; presumption of guilt; and imprisonment without trial.

Freedom from physical detention, as the Supreme Court emphasized in Hamdi v. Rumsfeld, “is the most elemental of liberty interests.” The safeguards to prevent unlawful detention by the Executive form a nucleus of the protections guaranteed by the Bill of Rights. The Constitution forbids indefinite detention except in the most exceptional circumstances and, only then, when subject to rigorous procedural safeguards. Due process does not simply prevent erroneous deprivations of liberty; it also preserves principled limits on executive power and reinforces the system’s legitimacy when it deprives individuals of their freedom.

Guantánamo strikes at the core of these protections and values. Initially, the United States detained prisoners at the base for more than two years without access to any court to challenge their detention. When its position was squarely rejected by the Supreme Court in June 2004 in Rasul v. Bush, the government sought to block federal court hearings, creating in its place a sham process known as the Combatant Status Review Tribunal (CSRT), which denies such fundamental safeguards as the right to see the government’s evidence and confront witnesses; the right to counsel; and the right to a neutral decisionmaker. Further, as a district judge has found, the CSRT permits indefinite detention based on evidence obtained by torture.

This system of indefinite detention not only produces legal injustice; it also results in human despair, as individuals face the prospect of never-ending imprisonment without a court judgment deciding their guilt or innocence and imposing a term of punishment. That despair is magnified by the harsh and brutal conditions to which detainees have been subjected. As the administration’s now notorious “torture memos” suggest, Guantánamo was born out of a desire to avoid any domestic or international legal constraints, including the Geneva Conventions, which prohibit torture and other cruel, inhuman or degrading treatment. Evidence of widespread abuse of detainees has not only been reported by international organizations, but has also been corroborated by U.S. government documents, such as FBI memoranda that the government was forced to disclose by litigation under the Freedom of Information Act.

Less frequently publicized is the prolonged isolation of many detainees, who remain cut-off from the outside world, including their families, who they have neither seen nor spoken to for nearly five years. The Supreme Court long ago warned of the dangers of prolonged isolation and sensory deprivation, describing it in the 1890 case In re Medley as “punishment of the most important and painful character.” Modern medical and scientific research confirms and deepens the Supreme Court’s turn-of-the-century understanding about the dangers posed by prolonged social isolation, de-humanizing treatment, and reduced environmental stimulation. Before the three suicides, there were at least 41 attempted suicides according to the government (a 2006 U.N. report says the number was much higher), as well as hundreds acts of “self-harm,” mass hunger strikes and mistreatment of hunger strikers, and cases of serious mental illness. Although the government describes the Guantánamo detentions as preventive, and not punitive (for then, they would require a trial), the harsh and de-humanizing conditions belie the government’s assertion that the detentions are “simple war measures.”

In short, indefinite detention and mistreatment at Guantánamo has created a situation ripe for prisoner suicide. More broadly, Guantánamo’s essential lawlessness has prevented America from responding to those suicides with legitimacy and conviction. To be sure, the administration can call the three men terrorists, but it cannot say they were ever tried and convicted of anything. It can also say that the men were treated humanely, but the administration cannot say they were treated in accordance with established domestic and international legal standards, since it maintained those standards did not apply to them.

America’s lost legitimacy cannot be regained overnight. The necessary first steps, however, are an independent investigation into the suicides and into the conditions at the prison generally, including the physical and mental health of the detainees; and the closure of Guantánamo, with all detainees promptly tried or released. The sooner the United States can admit its
failed experiment of indefinite detention at Guantánamo, the sooner it can begin to repair the damage.

Jonathan Hafetz is Associate Counsel at the Brennan Center for Justice at NYU School of Law. He has filed amicus briefs in the Guantánamo litigation and visited the base several times as counsel to a detainee.
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