Name me the parent who doesn't think that his or her child would suffer lasting harm if separated from his or her closest attachments. Yet, in a press briefing, Department of Homeland Security Secretary Kirstjen Nielsen bluntly insisted that "claiming these children and their parents are treated inhumanely is not true." It's worth mentioning, by the way, that the parents of the children were being tortured, too, not knowing where their children were being sent or held and when (or even if) they would ever see them again.
Perversely, administration spokespersons seemed to think that a trade-off had occurred: the loss of basic human rights for at least the pretense of pleasant cosmetic props. Some of the children at least were given toys and games. Nielsen even bragged that Trump administration officials had "high standards. We give them meals, we give them education, we give them medical care. There is videos, there is TVs."
This, too, should have been a reminder of Guanta'namo logic. The more the prisoners there were deprived of in terms of legal and human rights, the more the Bush administration boasted about the creature comforts offered to them, like movies, halal food, and even comfortable chairs (while they were being force-fed) -- as if the presence of toys could counteract the wrenching separation from a parent (or a comfortable chair, force-feeding).
Dr. Colleen Kraft, president of the American Academy of Pediatrics, caught the hypocrisy of it all, reporting that the children she saw were surrounded by "toys, books and crayons," but banging the floor and crying out in pain.
Creating Gitmos
Beyond the physical and emotional deprivations, there were the legal ones. The stay of those children was indefinite, the defining characteristic of Gitmo. Before the Trump separation policy started, children, as minors whose parents were awaiting decisions on immigration status, could only be held by the government for 20 days. With "zero tolerance," their saga suddenly became interminable.
Legally, like their parents, they were also reclassified. These were no longer the children of migrants or asylum seekers in immigration court, for whom there were strict policies and time limits on detention. They were now the children of alleged criminals, having essentially been rendered orphans. At Guanta'namo, changing legal categories in a similar fashion -- that is, defining the prisoners' detentions as military, not criminal in nature -- accomplished the same trick, avoiding the application of due process and rights for the detainees.
Which brings up yet another fundamental parallel between Gitmo's prisoners and the children's Gitmo at the border. Those being held were described in both places using the same crucial term: detainee. Guanta'namo branded this word forever as beyond the bounds of normal legality because the Bush administration officials who set up that system wanted to ensure that the normal legal protections of both national and international law would not be extended to those captured and held there. Guanta'namo, the government insisted, was not a prison. It was merely a "detention center." So many years later, it still is, while those incarcerated there have often served "sentences" of a decade and more, even though only a handful of them were ever actually sentenced by a court of any sort. In 2018, that same label was taken from those accused of being battlefield enemies and slapped on the children of asylum seekers.
As with Guanta'namo, lawyers who wanted to represent the parents, whose fates were to determine those of their separated children, found themselves impeded in their access to the detained adults. No one familiar with Gitmo could have missed the parallel. Lawyers seeking to provide assistance to war-on-terror detainees were kept out of Guanta'namo for more than two years after it opened.
The Southern Poverty Law Center recently filed suit claiming that, at two detention centers, authorities had limited the access of those undocumented immigrants to lawyers, violating due process. To make matters worse, Attorney General Jeff Sessions's Department of Justice recently decided not to renew two programs that offered legal aid lawyers to undocumented immigrants facing deportation. Meanwhile, that department has instituted a new policy in which pro-bono lawyers (those from NGO groups seeking to represent the detainees) now have to go through a certification process before taking them on at their own expense.
The media has been similarly restricted. Photographs of the detention "camps" for those children were left to the government alone to provide. So, too, when Guanta'namo opened, visiting journalists were ordered to leave their cameras behind. These restrictions stayed in place as official policy, intensified by none other than John Kelly. (Ironically, the Pentagon itself sent out the iconic early 2002 images of kneeling, shackled, orange-jump-suited detainees.)
For 16 years now, opponents of the U.S. detention center on the island of Cuba have understandably warned that its remarkable disregard for the rule of law would inevitably creep into America's institutions. For the most part, their worries centered on the federal court system and the possibility that defendants there might someday lose basic rights. Now, we know that Guanta'namo found a future in those detention camps on our southern border. Don't think it will be the last place that the influence of that infamous prison will pop up.
While this moment of crisis may have passed, consider this piece, at best, a requiem for a tragedy that has barely ended (if it has) -- and also a warning. The legacy of Guanta'namo continues to haunt our laws, our imaginations, and our way of life. It's time to do what we have failed to do for so long now: push back hard on the truly un-American policies spawned by that prison and apparent in so much else of Donald Trump's America. We need to do so now, before the way of life we once knew is largely erased. It's time to insist on the right to bring up our children in an America of compassion, law, and respect for the rights of all, not in one whose leaders are intent on robbing them -- and so many other children -- of their future.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law (CNS) and the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guanta'namo's First 100 Days. The summer interns at CNS contributed research for this article.
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Copyright 2018 Karen J. Greenberg
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