The story that never was.
I was eager to describe the sighs of relief of those who had fought against the very existence of that prison and what it had been like, year after year, to continue what had long seemed to many of them like a losing battle. I could almost envision the relief on the worn faces of the defense attorneys and psychologists who had come to know firsthand the torment of the Gitmo prisoners, some still in their teens, who had been consigned to that state of endless limbo, many of them tortured psychologically and sometimes physically. I also looked forward – and call me the dreamiest of optimists here – to collecting statements of remorse from government and military types who had at one time or another shared responsibility for the Gitmo enterprise.
Some lost hope over the years as the process of challenging the detention of Gitmo's prisoners in federal court – known as filing a writ of habeas corpus – increasingly proved a dead-end. After a couple of years in which detainees were granted release by the lower court approximately 75% of the time, reversals and denials began to predominate, bringing the habeas process to a virtual halt in 2011, a sorry situation Brian Foster, a prominent habeas lawyer from Covington and Burling LLP, has laid out clearly.
Then, in the 2011 National Defense Authorization Act (NDAA), Congress instituted a ban on the transfer of any Gitmo detainee to the United States for any purpose whatsoever – trial, further detention, or release. If federal courts wouldn't deal with them and federal prisons couldn't hold them, then how in the world could Guantánamo ever close?
In other words, those commissions, the Obama administration's answer to detention without trial, never worked. Pre-trial hearings, underway for years, in the cases still pending are expected to continue well into the 16th year since the attacks for which the defendants are to be tried took place. The chief prosecutor for the five 9/11 defendants who were brought to Gitmo in 2006 and charged in 2012, has recently – without the slightest sense of irony or remorse – proposed that their trials begin in March 2018. With appeals, they might conceivably conclude in the third decade of this century.
Then, in the fall of 2015, he appointed Lee Wolosky as special envoy for Guantánamo closure, again raising my hopes. I knew Wolosky, a no-nonsense lawyer who had served on the national security councils of both Bill Clinton and George W. Bush, and he seemed like the sort of man who would know how to broker the sensitive diplomatic deals that would get the job done. In fact, his work would result in the release to various willing countries of 75 prisoners, nearly 40% of the Gitmo population Obama had inherited. By the time he left office and Donald Trump entered it, the prison population had dwindled to 41: five prisoners cleared for release who still remained there when Wolosky went off the job; 10 military commissions cases; and 26 detainees whom Miami Herald journalist Carol Rosenberg aptly termed "forever prisoners" (to be held in indefinite detention because they were considered too dangerous for release and yet there wasn't enough evidence to bring them to trial).
As it turned out, of course, the pessimists couldn't have been more on target. On Inauguration Day, Gitmo was still open, awaiting a new president who seems determined to fill it up all over again, ensuring that in the rest of the world – and the Islamic world in particular – the United States would forever be associated with a place into whose DNA was etched abuse, torture, and injustice. The war on terror, the forever war, would now have its forever prisoners as well.
For 15 years, opponents of Guantánamo have insisted that its existence could change the character – and destiny – of the country. In its refusal to honor domestic, military, or international law, it has already opened the door to a new exceptionalist vision of the law. Unfortunately, Guantánamo is now a fixture of our landscape, as much an institution as new standards for the surveillance of American citizens, which means I may never get to write that piece about its last 100 days unless I resort to fiction.
What I'd write would be too succinct for even the shortest utopian novel. Think of it instead as the utopian op-ed that no paper will ever publish, the one in which the desire to be lawful and a deep belief that decency and security go hand in hand prevailed. In my utopian fantasy, in the world I fear I will never see, in the American world whose absence I mourn to this day, Guantánamo will be closed not because of calculations related to its cost or the inefficiency of its military commissions or even global realpolitik. It will be closed because it's the only right thing to do. Otherwise there will be another set of forever prisoners – and I'm not thinking about the future terror suspects that Donald Trump will send there, presumably forever. I'm thinking about us. For as long as Gitmo remains open, whether we know it or not, we're imprisoned there, too, and so is the American way of life.