Law professors question Gitmo closing

While many civil liberties activists are celebrating the closure of Guantanamo Bay, the implications actually fairly limited, according to two Law School professors.

By Nora Sorena Casey

While many civil liberties activists are celebrating Barack Obama’s order to close Guantanamo Bay, the implications of closing the detention center are actually fairly limited, according to two Law School professors at a discussion hosted by the American Civil Liberties Union (ACLU) Thursday night.

Both panelists, Eric Posner and Mary Anne Franks, agreed that the closing of the detention center has greater significance for public image and symbolic meaning than for actual United States policy. “The symbolic issue is laden with a lot of significance that it probably doesn’t deserve… people don’t understand that nothing has changed,” Franks said. “Where the real debate should lie is why we are picking up these people and calling them enemy soldiers.”

While President Obama has granted them more rights and called for more humane treatment of detainees, the panelists agreed that the important remaining policy issue is the process for identifying enemy combats.

The United States still maintains detention centers abroad, including at Bagram military base in Afghanistan, where detainees lack not only constitutional rights but habeas corpus rights as well, and no lawyers or reporters have been allowed within the facilities. Franks said that many Guantanamo detainees were relocated to Bagram during the Bush administration, and that it is entirely possible that more of the detainees from Guantanamo Bay will be moved to Bagram and continually detained after the closing of the facility.

“There is nothing in international law that prevents you from setting up a detention center,” said Posner. “You’d have to have a constitutional amendment to prevent that from happening.”

The indefinite detainment of combatants is a standard government policy in the traditional war model. The issue the U.S. faces is that many people who have been detained on uncertain evidence are not, and often cannot be, released after detainment. Even if they are acquitted in a military trial, military policy does not allow the release of detainees into countries where they may be harmed. Since many of the detainees may have committed offenses in their home countries and thus may face torture there, many cannot be returned.

The panelists were skeptical that the use of excessive force against detainees who have only limited human and legal rights would change. “You could argue that it would be the best thing for the detainees if Guantanamo Bay were open because that’s where the battles have been fought,” Franks said. “A cynical way to look at it is, ‘Let’s just make a public move and then keep doing what we were doing in secret.’”

It is this scrutiny of the Obama administration’s actions that the University of Chicago chapter of the ACLU hopes to promote.

“The information [the panelists] provided was valuable in terms of helping to deconstruct certain myths about the implications and the practical reality of the moral promises Obama has made,” said ACLU Executive Director, Maroon columnist and third-year Marshall Knudson. “It’s necessary that we at least put pressure on the president to demystify and clarify the way the U.S. military deals with foreign combatants. Rhetoric simply isn’t going to be enough.”