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As the US marks the 250th anniversary of its freedom from executive tyranny, Guantánamo exposes its hypocrisy
Marking the 250th anniversary, today, of the US’s Declaration of Independence from its colonial masters in Great Britain — largely to escape the yoke of executive tyranny — here’s a photo of me outside the US Embassy in London on Wednesday, during the latest coordinated monthly global vigils for the closure of the prison at Guantánamo Bay.
The poster I’m holding, which I made for the occasion, provides what I hope is a vivid reminder that executive tyranny was not abolished with the Declaration of Independence, but lives on in the ongoing and fundamentally lawless imprisonment of 15 men at Guantánamo, the last of the 779 men and boys held there by the US military since the prison opened on January 11, 2002.
Although both Congress and the Supreme Court sought to justify the imprisonment, after the terrorist attacks on September 11, 2001, of Muslims seized in the so-called global “war on terror” declared by the Bush administration in the wake of the attacks, the law as we understand it — with its clear prohibition on imprisonment without charge or trial — has barely ever functioned at Guantánamo.
Long struggles by lawyers and human rights groups secured the eventual recognition by the Supreme Court that the prisoners had habeas corpus rights — the “Great Writ”, first developed in England, ironically, which forbids executive imprisonment, and requires a trial by jury.
That was in June 2004 (in Rasul v. Bush), and it only happened because a majority of the Justices recognized that those held at Guantánamo were not being held as prisoners of war, protected by the Geneva Conventions, who could lawfully be held unmolested until the end of hostilities, but had fallen into a legal black hole, whereby, if they claimed that they were seized by mistake, as many of them did, no avenue existed for them to challenge the basis of their imprisonment.
Congress, under George W. Bush, subsequently passed laws designed to suppress the Supreme Court’s ruling, and it took another four years before, in another momentous ruling in June 2008 (Boumediene v. Bush), the Court confirmed that the prisoners had constitutionally guaranteed habeas corpus rights.
For two years, as a result of this ruling, the law applied at Guantánamo. Judges reviewed prisoners’ habeas petitions, weighing the defendants’ arguments against the government’s so-called evidence, and in 38 cases, between 2008 and 2010, decided that the government had failed to establish, even with a very low evidentiary bar, that the men in question had any meaningful connection whatsoever to Al-Qaeda, the Taliban or other associated forces.
32 of these men were eventually released as a result of those decisions — some within a matter of weeks or months, although others had to wait for years to finally be freed.
However, when the government appealed some of these rulings, politically motivated judges in the Court of Appeals cynically rewrote the rules, eventually gutting habeas of all meaning for the Guantánamo prisoners. After July 2010, no habeas petition was successful, and by the end of 2011 the lawyers and the prisoners largely gave up.
Since then — and as was the case from 2002 to 2008, when around two-thirds of Guantánamo’s prisoners were released under George W. Bush — the only way out of Guantánamo has, in general, been through administrative reviews, fundamentally unreviewable and unaccountable processes involving, under Bush, panels of military officers, and, under Obama, a sweeping year-long review by government, military and intelligence officials followed by reviews, by panels of military and intelligence officials, of those recommended for ongoing imprisonment.
Six of the 15 men still held are detained on the basis of these processes, which resemble nothing less than the vile and fundamentally lawless system of “administrative detention” used by the State of Israel to keep Palestinians in a state of permanent legal limbo via cursory security assessments that can be renewed indefinitely every six months. In Guantánamo, these reviews generally take place every two or three years, but the process is essentially the same.
Even when approved for release — as is the case with three of the six men specifically held under the US’s “administrative detention” system — no legal mechanism exists to compel the government to actually free them. One of the three has been waiting to be freed for 16 years, while the other two have been waiting since 2021 and 2022.
Even for those who have been charged and are facing trials — in the special military commission trial system that was dredged up from the history books for use at Guantánamo — the stench of executive tyranny hangs over the proceedings.
When prosecutors for three of the five men still held who are accused of involvement in the 9/11 attacks realized, in 2022, that successful prosecutions would be impossible, primarily because of their belated recognition that the use of torture on these men, in CIA “black site” torture prisons, was incompatible with justice, their efforts to secure plea deals, on which they worked with the defense teams and with the commissions’ convening authority, the military official who oversees the trial system, were over-ruled by then-defense secretary Lloyd Austin in August 2024, via a clear example of executive overreach.
Austin didn’t have right to over-ride the convening authority that he appointed, but he did so anyway, because it was more important for the Biden administration — as with all the administrations who have overseen Guantánamo over the last 24 years — to preserve a fiction of successful vengeful punishment and execution than to accept the reality that torture has made successful prosecutions impossible.
While these cases drag on once more in the military commissions, where they have been caught up in pre-trial hearings for 14 years, the inescapable truth is that, when pressed, the US government preferred to exercise executive tyranny rather than follow logic and the law.
There are many reasons, today, for puncturing the myth that, 250 years ago, the 13 US colonies freed themselves from the yoke of executive tyranny and established a new nation on the principle that “all men are created equal”, and “are endowed by their Creator with certain unalienable Rights.”
The horrors of slavery, and the genocidal pursuit of the indigenous population are just two glaring examples that have haunted the Republic throughout its 250-year existence, but for a practical demonstration of executive tyranny in action, right here and right now, it’s important today to remember Guantánamo and the 15 men still held there, and to realize that their fate is, essentially, in the hands of one man, Donald Trump, the 47th President of the United States, who, as president, has such power over Guantánamo that, for the duration of his term in office, no one will be freed from the prison, and no one can do anything about it.
See the stories of the 15 men still held at the link below.
