By JOE NOCERA
The New York Times News Service
Over the past two weeks, 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” — which is to say, precisely, what the detainees and their lawyers have been claiming for months. 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.
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 ability to do anything about it because, she said, the judiciary doesn’t have the authority to intervene over the conditions under which the detainees are being jailed.
Lamberth, on the other hand, ruled that he did have the right to intervene. That’s 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. (Not that it does them much good: the District of Columbia Court of Appeals has made it impossible for a detainee to win a habeas corpus ruling.)
If the detainees are ever going to get relief, it will have to come from elsewhere.
As I have mentioned previously, some 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 ‘[t]he 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.