Two days after being sworn in as the forty-fourth president of the United States, Barack Obama signed three executive orders, banning torture, requiring the CIA to use the same methods as the military in interrogating terror suspects, shutting down the network of secret CIA prisons and shuttering the prison at Guantánamo Bay, Cuba, within a year. "What the cynics fail to understand," the president proclaimed in his inaugural address, "is that the ground has shifted beneath them."
But where exactly has the ground shifted? The places of focus–and much of the furor against Bush’s terror politics over the past few years–are outside our nation’s borders, in distant lands and faraway prisons. The problem of torture and other human rights violations in America’s "war on terror" has been framed as a problem that happens largely beyond our shores. The underlying assumption is that if Guantánamo detainees were to be tried on United States soil and in federal courts (as many groups demand), such egregious abuses would not occur.
But Guantánamo is not simply an aberration; its closure will not return America to the rule of law or to its former standing among nations. Guantánamo is a particular way of seeing the Constitution, of constructing the landscape as a murky terrain of lurking enemies where the courts become part of the bulwark against such dangers, where rights have limits and where international standards must be weighed against national security. It is an outgrowth of a "war on terror" with historical precedents that took root under Clinton (in legislation like the 1996 Antiterrorism and Effective Death Penalty Act), spread like kudzu under Bush and infiltrated the fabric of the justice system. It is a pre-emptive strategy where stopping terrorism has come to mean detaining and prosecuting people who may not have committed any actual act of terrorism but whose religious beliefs and political associations ostensibly reveal an intention to do so.
T he day after President Obama signed the three executive orders, I sat in a courtroom for a hearing in the case of Syed Fahad Hashmi. Hashmi is a 29-year-old Muslim American citizen being held in solitary confinement at the federal Metropolitan Correctional Center (MCC) in Lower Manhattan. He is charged with two counts of providing and conspiring to provide material support and two counts of making and conspiring to make a contribution of goods or services to Al Qaeda. If convicted, Hashmi faces seventy years in prison. He is also a former student of mine at Brooklyn College who graduated in 2003 and received his master’s degree in international relations at London Metropolitan University in 2005.