Sunday, July 28, 2013 | 2 a.m.
Over the past two weeks, three federal judges have issued rulings on the legitimacy of the recent rough treatment being doled out to the detainees at Guantanamo Bay, Cuba. Under normal circumstances, two of the rulings would add up to a resounding victory for the detainees. But at Guantanamo Bay, where prisoners the government itself acknowledges are not security threats can see no end to their decade-plus imprisonment, nothing is “normal.”
The rulings began July 8, when Judge Gladys Kessler opined that the force-feeding of detainees who have been on a hunger strike was “painful, humiliating and degrading.” She scoffed at the government’s contention that the detainees were receiving “timely, compassionate, quality health care.”
Three days later, Royce C. Lamberth, the chief judge for the U.S. District Court in the District of Columbia, ruled that prison guards had to stop touching the genitals of the detainees as part of new, tougher search protocols. Since early this year, meetings and even phone calls between detainees and their lawyers have had to take place outside the prisoner’s own “camp.” This meant they had to be searched in this offensive manner both on the trip out to see their lawyers and on the trip back. Because many detainees had religious objections to the genital searches, they were refusing to speak to their lawyers.
(The third ruling, on July 16, by Judge Rosemary Collyer of U.S. District Court, disagreed with Kessler. Collyer wrote that force-feeding was humane and that the detainees “had no right to commit suicide.”)
Did anything change as a result of the opinions by Kessler and Lamberth? No. Despite her clear dismay at the treatment of the detainees, Kessler concluded that she lacked the authority to do anything about it.
Lamberth ruled that he did have the right to intervene, because of a 2008 Supreme Court ruling that detainees have the right to challenge the legality of their detention — for which they obviously need access to lawyers
When a lawyer a few days later tried to get the Defense Department to comply with Lamberth’s ruling — he had scheduled a phone call with a client and didn’t want the prisoner’s genitals to be searched — he was told by the government that the Defense Department would simply not comply with the order. Soon thereafter, the government asked for an “administrative stay” of Lamberth’s order. That meant that it wanted the appeals court to delay the judge’s order until it could get around to asking for an actual stay. As usual, the appeals court did what the government wanted.
And so it goes at Guantanamo Bay. The lawyers representing the detainees make motion after motion, appeal after appeal. It gets them nowhere. With the exception of that one Supreme Court ruling — which had been systematically undercut by the court of appeals — the court system has opted out of dealing with the problem that the Guantanamo prison represents to the country. If the detainees are ever going to get relief, it will have to come from elsewhere.
As I have mentioned previously, 86 of the 166 detainees at Guantanamo Bay have been “cleared” by a committee made up of national security officials, meaning they could leave the prison tomorrow without any threat to national security. Recently, the government sent letters to a number of lawyers informing them that their clients would soon be called before a review board that would determine whether they could be added to that list. Although the detainees themselves have largely given up hope of ever getting out — hence the hunger strike — one of their lawyers, David Remes, says, “I keep telling them that it is a lot better to be in Group A than Group B.”
The truth is, there is one person who could get them out tomorrow — if he chose. That same person could stop the military from force-feeding the detainees. I am referring, of course, to President Barack Obama. Yet despite decrying the Guantanamo prison, the president has refused to do anything but stand by and watch the military inflict needless pain and suffering, much of it on men who simply shouldn’t be there. Indeed, in many of the legal briefs filed on behalf of Guantanamo prisoners, the defendant is Barack Obama.
“Article II, Section 2 of the Constitution provides that ‘the President shall be the Commander in Chief of the Army and Navy of the United States,” wrote Kessler in her pained but eloquent opinion. One longs for the day when he finally acts the part.
Joe Nocera is a columnist for The New York Times.