The first 20 detainees arrived at Guantánamo's Camp X-Ray eight years ago, on January 11, 2002. Just over seven years later, President Barack Obama—on his second full day after taking office—issued an order to shut the prison within a year.
His rhetoric was clear and decisive. "There is no time to lose," he said, remarking that the United States can fight terrorism without sacrificing "our values and our ideals." To that end he committed to real change: "I can say without exception or equivocation that the United States will not torture. Second, we will close the Guantánamo Bay detention camp and determine how to deal with those who have been held there."
That was January 22, 2009. But the Obama administration has failed to close the facility, where—by many accounts—inmates were harshly interrogated and even tortured, by its own deadline. Now there's talk that the prison will remain open at least through 2010. And the proposal to move detainees to a maximum security prison in Illinois superficially retires Guantánamo as a symbol, while retaining the legal problems it embodies. Equally troubling is the administration's expansion of detention facilities in Afghanistan that are almost impenetrable for lawyers and humanitarian groups.
The "prolonged detention" without charge or trial that Obama plans for some inmates strips detained men of basic legal and human rights, more deeply corrupting American governance with the reckless assertion of the executive's near-limitless power.
The barely foiled Christmas Day attack by a suicide bomber aboard a flight to Detroit exposed ongoing weaknesses in our multi-billion-dollar security apparatus. But its aftermath has revealed how our ideals continue to falter, as Obama's policies mirror those of his predecessor and fail to match his own high-minded rhetoric.
The response to Flight 253 hasn't only been long lines, body scans at airports, and mea culpas from security agencies. There are also swift, loud and vicious proclamations from Republican leaders and conservative media that the only way to ensure security is to blast at our enemies and the rule of law with both barrels. Send "underwear bomber" Umar Farouk Abdulmutallab to Guantánamo and keep the prison open forever. Suspend plans for civilian trials of terror suspects. Revive "enhanced interrogations." Summarily execute al-Qaeda suspects.
The Obama administration hasn't publicly challenged this nonsense. It has, however, already made a sad concession to this fear-mongering by suspending the release of all Yemeni men from Guantánamo, even those who have been cleared through the government's extensive Guantánamo Review Task Force. This decision, which condemns innocent men to months or years of more illegal detention, confirms a pattern of the Obama administration promising change but delivering more of the same. No less troublesome are a host of other Obama administration policies: the continued practice of rendition and operation of secret prisons; the planned use of use Bush-style military commissions to try some detainees; the expansion of the Bagram prison in Afghanistan and the denial of habeas rights to inmates there not captured on the Afghan battlefield; the repeated, tendentious use of the "state's secrets" defense to block lawsuits by former detainees seeking redress for their mistreatment; and the effective grant of immunity to those who designed, ordered, and executed torture policies under the Bush administration.
In a worrisome sign of possible things to come, the Bush-appointed Judge Janice Rogers Brown recently asserted in an opinion rejecting the habeas petition of a man held at Guantánamo that the war against terrorism thrusts us into a new paradigm, "one that demands [that] new rules be written...War is a challenge to law, and the law must adjust."
That's exactly the opposite of what must happen. The law needs our president as an authentic advocate—not just in words but in deeds—when times are "hard" and war rages. This is the case right now. To do anything else is to condemn this nation to a free fall into the "dark side" where Dick Cheney seems so comfortable.