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Guantanamo casts a shadow on our values

My View • Broken promises snuff out America's beacon of liberty
by: Randall Mikkelsen-Pool 
The Obama administration’s efforts to close Guantanamo were blocked in May 2009. Portland attorney Steven Wax, who has represented six detainees at Guantanamo, said the move threw a shadow over the United States’ “beacon of liberty that continues to speak so strongly to people around the world.”

During his first week in office, President Obama issued five executive orders on Guantanamo and the war on terror. They included stopping the 'trials' the Bush administration had ordered before military commissions in Guantanamo, review of all the prisoners' files, closure of the prison, and rescission of the Bush administration's orders on interrogation that had permitted torture.

These powerful actions appeared likely to lead to quick repatriation of most of the men who had been held in the prison for, at that time, seven years, restore the rule of law and re-establish America's place as the beacon of liberty in the world.

The promise of the executive orders has not been fulfilled.

Jarring notes

When the Bush administration left office, 242 prisoners remained in Guantanamo. Among them were two of my office's six clients. Our other four - three Afghans and a Sudanese - had been transferred home in 2007. In line with the arbitrariness of the Bush administration's actions, all had been sent home with the 'enemy combatant' designation intact and with written notice that their transfer did not mean that they no longer constituted a danger to the United States.

The new administration's pronouncements, coupled with the Supreme Court's ruling in 'Boumediene v. Bush' the previous summer that all the men were entitled to meaningful hearings in federal court, brought real hope to the men still in the prison.

For our last two clients, this was quickly translated into habeas hearings. We won them both, two different federal judges ruling that there was no basis to hold the men. But there were several jarring notes in the hearings. Notwithstanding the change in direction heralded by the president's executive orders, the Obama legal team continued to press the same, often extreme positions as their predecessors. In one of our cases, the judge, a conservative Bush appointee, was so disturbed that he wrote that the government's position 'defies common sense.'

It was after the hearings that the real roadblocks emerged. Neither of the clients could safely go back to their home countries. What made the most sense was to parole them into our country while more permanent arrangements could be made. But Congress forbade that.

The Obama administration's efforts to close Guantanamo were blocked in May 2009, when Congress passed a rider to a Supplemental Appropriations Act forbidding the expenditure of any funds to bring Guantanamo prisoners into the United States.

For our clients, this meant that they could leave the prison only if the United States could find other countries willing to take them in. The same was true for the majority of men left in Guantanamo that the administration's review had determined were either innocent or no longer posed a danger and whose home countries were not safe.

Not surprisingly, the response from most countries was, 'If you are not going to take these men in, why should we?' There have been some successes. Our last two clients were among 70 safely placed last year. But no one has left the prison in many months.

Congress' ban on spending money to remove men from the prison reaches not only men who would be freed, but also bars transferring people to U.S. prisons or bringing the prisoners to this country for trial. As a result, the Obama administration has been forced to change course several times. It has identified a score of men it wants to try for war crimes and had planned a series of trials in New York City. But that cannot happen because of the Congressional ban. As a result, the administration has re-started military commission trials in Guantanamo, albeit with procedures somewhat more fair than under the Bush administration.

Reflect on fears

Most troubling is the announcement that the president plans to hold some of the men indefinitely without trial. In March, he issued an executive order that stands in stark contrast to the promise with which he began his administration - an order authorizing the indefinite detention of at least 48 of the men in the prison.

Our clients who are home and safe have picked up their lives. At least two have married. Two have sent us photos of new babies. Four want us to keep fighting in court for vindication of their innocence and removal of the enemy combatant label. While we have not yet been successful, we continue to press their cause.

This week's 10th anniversary of the attacks of Sept. 11, 2001, is a painful time for those who lost family and friends in the attacks. They need our support.

The anniversary also provides an important opportunity to reflect on the fears that continue to erode our nation's core values. The faith of my clients in American values and the rule of law remains strong.

Our institutions and justice system are resilient enough to deal effectively with the prisoners remaining in Guantanamo, the possible war criminals, and the innocent.

Oregon federal defender Steven T. Wax is the author of 'Kafka Comes To America, Fighting For Justice In The War On Terror.' He and his staff successfully represented six former Guantanamo prisoners.