I have watched the debate on the closing of the prison camp at Guantanamo Bay, Cuba, with much interest. President Obama’s idea of closing Guantanamo and sending detainees to a prison in Illinois would be great for me as habeas counsel, but horrible for my client. It would be great for me because I live in Gary, Indiana. Instead of flying to Florida and then on to Cuba, I could just drive to Illinois to visit my client. This would save me hundreds of dollars, since habeas counsel have to totally foot the bill for every aspect of our representation of detainees, from travel to and from Gitmo, to buying our own food, to paying for interpreter services, to lodging.
On the other hand, this move would be horrible for my client. My client is Khairullah Khairkhwa, an Afghan. He has been held in Guantanamo for the past six years. He has not been charged with a crime. He has not seen his homeland or his family since his detainment. He most certainly wants to leave Gitmo, but more to the point, he wants to be freed. Sending him to another prison located in Illinois is simply an illusory transfer; it removes my client from Guantanamo Bay, Cuba and imprisons him in what will essentially be Guantanamo, Illinois. He will still be detained, without charge, unless or until we can get him into court. He will still be held thousands of miles from his family and homeland in Afghanistan. This is not progress, it is pretense. The president will look good, because he can say that he has closed the infamous Gitmo. He can take credit for “improving our image” around the world. But habeas counsel and human rights advocates never called for the simple closing of Gitmo. We are not interested in this matter merely as a PR coup for America. We called for the closure of Gitmo as a demand to stop torture, to expose the fallacy and the human costs of the so-called “war on terror” and to give our clients basic human rights and due process of law guaranteed to them under the U.S. Constitution and international human rights law. To simply close Gitmo and transfer our clients to another prison camp in the U.S. does nothing for any of these goals. If successful, the President will be able to announce that he has done a wonderful thing to advance human rights, but the physical reality for my client will not change; he will still be a prisoner of the United States awaiting a trial on an undisclosed charge.
Much has been written about the closing of the Guantanamo Bay prison camp. Pundits on the left and right, of course, differ, and even those of us who are habeas counsel don’t necessarily agree on the proposal. Those who advocate closing Gitmo merely to “improve our image,” in my opinion, are people who, one, are more concerned with form than substance, and two, have been blinded by the propaganda of American exceptionalism. Closing Gitmo doesn’t restore our “standing” in the world, nor should that be the driving force behind our decision. The president should be motivated by adhering to the rule of law. Any discussion of indefinite detention should be jettisoned. Closing Gitmo, along with ending the failed “war on terror,” should be discussed within the same framework; our clients would not have been picked up and sent to Gitmo without the prosecution of the “war on terror.” If the president is concerned about America’s image, which he should be, promoting international norms and laws would most certainly help rather than cosmetic changes like sending prisoners from one camp to another.
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It would definitely be more convenient and less expensive for me to simply drive across the border from Gary, Indiana to Illinois to visit my client. But convenience was not my motive in accepting this representation and Mr. Khairkhwa is not concerned with my comfort. I’m concerned with his. He simply wants to go home, not be closer to mine.