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Tomgram: Greenberg and Dratel, The Gitmo Era

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In these years, Washington has, in a sense, tortured history.

Early in this century, the Guanta'namo Bay detention facility would become the crown jewel of a mini-gulag of torture and mistreatment that the CIA and the U.S. military -- remember those infamous photos from Abu Ghraib prison in Iraq? -- set up as part of George W. Bush's Global War on Terror. As I wrote back then, that prison in Cuba had become a key part of "our own global Bermuda Triangle of Injustice."

Keep in mind that our previous president, Barack Obama, actually wanted to close Guanta'namo and signed an executive order to do so "within a year" on his first day in office. Little good that did.

Long before Donald Trump began to claim immunity from anything and everything, this country's increasingly imperial presidency had become deeply linked to that war on terror, a secret war in which anything went and nothing was considered impermissible. As Jess Bravin of the Wall Street Journal reported back in 2004, "Bush administration lawyers contended... that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department."

In fact, those lawyers had no shame. In a classic passage from a 2002 Justice Department memo meant to make torture part of that war's legal arsenal of weaponry, those lawyers claimed that, even to qualify as torture, the treatment of prisoners had to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." They added that, "for purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

To this day, none of those CIA torturers has spent a day in jail for their acts. And despite that Obama executive order, the Guanta'namo nightmare not only didn't end, but -- as TomDispatchregular Karen Greenberg and Joshua Dratel suggest today -- became an ever more significant part of American life. It would, as they make clear, leave that island (and the CIA "black sites" set up around the world) and head for the mainland. There, Guanta'namo-style cruelty has become the order of the day, especially on our southern border, the crown jewel of Donald Trump's own Bermuda Triangle of Injustice. Tom

Guanta'namo's Indelible Legacy
Or How This Became a Gitmo World
By Karen J. Greenberg and Joshua L. Dratel

In January 2002, the Guanta'namo Bay Detention Facility in Cuba opened its gates for the first 20 detainees of the war on terror. Within 100 days, 300 of them would arrive, often hooded and in those infamous orange jumpsuits, and that would just be the beginning. At its height, the population would rise to nearly 800 prisoners from 59 countries. Eighteen years later, it still holds 40 prisoners, most of whom will undoubtedly remain there without charges or trial for the rest of their lives. (That's likely true even of the five who have been cleared for release for more than a decade.) In 2013, journalist Carol Rosenberg astutely labeled them "forever prisoners." And those detainees are hardly the only enduring legacy of Guanta'namo Bay. Thanks to that prison camp, we as a country have come to understand aspects of both the law and policy in new ways that might prove to be "forever changes."

Here are eight ways in which the toxic policies of that offshore facility have contaminated American institutions, as well as our laws and customs, in the years since 2002.

1. Indefinite detention: The first item on any list of Guanta'namo's offspring would have to be the category "indefinite detention." In the context of U.S. law, until that long-ago January, the very notion was both foreign and forbidden. Detention without charge or trial was, in fact, precluded by the Fifth Amendment's right to due process, a reality that had been honored since the founding of the republic. Though the detainees there were eventually granted access to lawyers and the right to have their cases reviewed, for only a handful of them has that right of being charged or released been realized.

The indefinite detention that began at Guanta'namo Bay has now spawned its mirror image in the camps for undocumented immigrants (and their children) along the U.S. Mexican border. Even the optics there are proving to be carbon copies of Guanta'namo: the open-air wire cages, the armed guards, and the physical abuse of migrants and asylum seekers, both adults and children. At Guanta'namo Bay, the government didn't distinguish between juveniles and adults until years after the facility had opened, another example of a policy Gitmo brought into existence that was previously inconceivable in the U.S. legal system. In some ways, in fact, the situation at the border may be even worse, as the detained there are kept in unsanitary conditions without sufficient access to doctors.

And here's another way the border is one-upping Guanta'namo. The government was required to give the International Committee of the Red Cross access to its wartime detention facilities, so the health and medical conditions at Gitmo were monitored and kept to a relatively decent standard once those initial three months of open-air cages ended. In the border detention centers, however, tots have been left in soiled diapers, housed along with their mothers and fathers in bitterly cold, jail-like conditions, and denied adequate medical attention, including vaccines.

2. A new legal language for the purpose of bypassing the law: From the very start, Guanta'namo challenged the normal language of law and democracy. The detainees there could not be called "prisoners" as they would then have been considered "prisoners of war" and so subject to the protections of the Geneva Conventions. The cages and later prefab prison complexes (transported from Indiana) could not be labeled "prisons" for the same reason. So the government invented a new term, "enemy combatant," derived from "unlawful enemy belligerent," that did have legal standing. The point, of course, was to create a whole new legal category that, like the offshore prison itself, would be immune to existing laws, American or international, pertaining to prisoners of war.

This evasion of the law has not only persisted to this day, but has crept into other areas of Washington's foreign policy. Recently, for instance, Trump administration lawyers invoked the term "enemy combatant" to justify the drone killing of Iranian Major General Qassem Suleimani in Iraq. Meanwhile, at the border, asylum seekers have been transformed into "illegal immigrants" and, on that basis, denied essential rights.

3. Legal cover: While a new language was being institutionalized, the Department of Justice offered its own version of legal cover. Its Office of Legal Counsel (OLC) was enlisted to provide often-secret legal justifications for the policies underlying what was then being called the Global War on Terror. The OLC would, in fact, devise farfetched rationales for many previously outlawed policies of that war, most notoriously the CIA's torture and interrogation programs whose "enhanced interrogation techniques" were used at the Agency's "black sites" (or secret prisons) around the world upon a number of high-profile detainees later sent to Guanta'namo.

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Tom Engelhardt, who runs the Nation Institute's ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)

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