The US Supreme Court has yet to rule on the constitutional challenges filed by Guantánamo detainees to their six-year-plus imprisonments. It may not do so until June. Yet politicians already are lining up to ensure that, however the Court rules, a full remedy for the Bush Administration’s errors proves impossible.
Last month, Republican senator Sam Brownback of Kansas made a pre-emptive strike against any plan to move detainees to the United States. Responding to vague plans to transfer detainees to military facilities in Fort Leavenworth, in his home state, Brownback argued that logistical and technical barriers would make such detentions unfeasible.
Brownback’s localism obscures more than it reveals. He assumes that the central problem of unwinding Guantánamo will be how to “store” the remaining detainees, whom he presumes to be too dangerous to be released. He is wrong. The most pressing problem, one that will persist whatever the Supreme Court does, is the fate of detainees who have been seized in error–innocent men who now cannot be returned to their home countries due to the risk of torture.
Brownback has things precisely backward. Rather than worry about the hypothetically guilty at Guantánamo (for in fact no one there has been fairly convicted of any crime), the priority should be how to deal fairly with the innocent.
The most fair and plausible solution for these detainees is resettlement within the United States, a solution only a handful of courageous Guantánamo lawyers have sought to date. Yet the American public has yet to recognize this.
A recent report by the New York-based Center for Constitutional Rights documents the cases of at least fifty Guantánamo detainees who are at high risk of torture if they are returned to their home countries. However exposed such detainees were before, being repeatedly branded as dangerous terrorists by the Bush Administration has entrenched their at-risk status beyond repair. Recent repatriations from Guantánamo to Tunisia and Russia have moved detainees to prisons with even worse conditions–and with less access to legal or humanitarian assistance–than they had at the Cuban base.
Indeed, the implausibility of safe repatriation in such circumstances is now so evident that even the conservative US Court of Appeals in Washington has held that courts can stay transfers to examine the risk of torture.