These days there is a sense that Washington, DC, along with most of the Western world, has transported back to the 1930s, when fascism was openly on the march. And the latest executive order from President Donald Trump vowing to send 30,000 “illegal immigrants” to Guantanamo Bay, Cuba is certainly adding to this vibe.
When I say Guantanamo Bay, of course, I mean the US overseas prison that achieved notoriety in the wake of 9/11 as the number one torture camp for those swept up in the “War on Terror”. I have a certain familiarity with the place – I often refer to it as my Caribbean resort of choice – as I represented dozens of people detained there, brought the first case against the George W Bush administration (Rasul v Bush) related to it back in 2002. I have visited the facility placed within a US naval base a total of 42 times.
Trump’s latest plans to use Guantanamo as a holding centre for undocumented immigrants is very fitting of the base’s decades-long history as a site of American international law violations.
One consequence of the Spanish-American War of 1898 was the independence of Cuba from its European colonial masters, but it came at a price: in 1901, the US wrote an amendment into the country’s constitution that allowed American intervention, and two years later insisted on a lease, with no termination date, on the magnificent harbour and 45 square miles (116sq km) of territory. The rent for all this is currently $4,085 a year, about the same as a very cheap apartment in Miami.
The base was important to the US Navy a century ago as a coaling station for American ships patrolling the Caribbean and the southern Atlantic. Today, its military significance has declined. However, it has proven to be useful in a series of US efforts to skirt human rights law.
In the early 1990s, unrest in nearby Haiti threatened a refugee influx into South Florida. Any Haitians who manage to reach US soil would be entitled to all the rights of a legal resident. The US came up with a ruse – that if refugees were picked up on the high seas, before reaching US soil, these rights would never attach, because Guantanamo is technically Cuban territory. So the government set up a detention centre called Camp Buckley there and the US Coast Guard “interdicted” the Haitian refugees before their fragile flotilla reached the Florida Keys, and took them all to the naval base.
The Center for Constitutional Rights brought litigation back then challenging the legal fiction of Camp Buckley, but in 1993, the Supreme Court ruled 8-1 in Sale v Haitian Centers Council that the strategy was legal. In his lonely dissent, Justice Blackmun wrote, “Today’s majority … decides that the forced repatriation of the Haitian refugees is perfectly legal, because the word ‘return’ does not mean return”- given they never got to the United States in the first place. Nevertheless, when the last Haitian left Guantanamo in 1995, this seemed to be a dark chapter of the law that would be consigned to history.
It was not. After 9/11, the Bush administration wanted to make a loud statement that it was “doing something” about the terrorists who had carried out the attacks, all of whom had obviously died committing their crime. When a populist government is pretending to be taking meaningful action, they find it convenient to cover up the patent flaws in the plan. When the administration lawyers remembered the Sale ruling, they thought that if the detainees were taken to Guantanamo they would have no rights, and lawyers could safely be kept out of the way.
Starting on January 11, 2002, the detainees began to arrive. We sued six weeks later, on February 19, when we had managed to find the family member of a British prisoner who could act as our client. The legal consensus was that we would lose, the detainees would have no legal rights, and the government’s false narrative would remain shrouded in secrecy.
I always disagreed, and fortunately, the US Constitution eventually proved more resilient than the naysayers predicted. It took over two years, but on June 28, 2004, the Supreme Court handed down Rasul v Bush, recognising the prisoners’ legal rights. I was able to visit clients shortly after that. However, in the past 20 years since, Guantanamo has still proven to be a case study on populist overreach.
From the beginning, our plan was to open the prison up to public scrutiny, which would expose the folly of the whole enterprise.
In total, there have been 780 detainees in the prison who were deemed the “worst of the worst” terrorists in the world. Today, just 15 remain, meaning that 765 have left, sadly nine of them in a coffin. To be released, the detainee must prove that he is “no threat to the US” – so, using their own metric, the government was wrong in roughly 98 percent of cases. This was because the US had bought most of the detainees with bounties, and then tortured them into false statements of guilt. Among those who remain, the US has failed to convict even Khalid Sheikh Mohammed for his avowed role in planning 9/11, largely because it has undermined any legal process by using medieval torture on him, as well.
There are few schemes in history that have gone so terribly wrong. The hypocrisy of the Bush administration, touting itself as the protector of democracy and the rule of law, was the yeast that fermented hatred so strong that, even by 2004, David Rose quoted a US intelligence officer as saying “for every detainee, I’d guess you create another 10 terrorists.”
Which brings us to Donald Trump’s executive order. He wants to take 30,000 “illegal aliens” there – which I suppose amounts to a rather inconsequential 0.23 percent of the 13 million people he promised to kick out of the country. Rather than the worst terrorists promised by his predecessors, he tells us the camp will now “detain the worst criminal illegal aliens threatening the American people”. This, he claims, is going to make America safe – apparently in precisely the same way holding up “terrorists” there did in the past.
It is all a very poisonous pipe dream. That is not to say he won’t do it, just as George W Bush did. Indeed, on one of my many trips to Guantanamo, I walked around the camps that were long since built on the base – hundreds of millions of dollars already frittered away preparing in deluded expectation that Fidel Castro’s death would result in a flood of refugees fleeing the satanic sin of communism. Because the vast majority of the prison camp is now empty, they have a few hundred real prison cells going spare, too.
But Trump’s lawyers appear to have forgotten that all his victims this time will be taken from the US mainland, and therefore entitled to the full panoply of legal rights granted by the Constitution. Lawyers will be allowed in. The judiciary will have to be real, rather than the Kangaroo Courts of the Guantanamo military commissions. There will be none of the secrecy that protected Bush’s project from public scrutiny for too long.
I’ve already been there 42 times. The last of my 87 “terrorist” clients was released only a couple of weeks ago. I suppose this means I may need to go back to my Caribbean resort a few more times. Again it will be a case of The Constitution v The President. Again, my bet is that the Constitution will win out.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.