Tuesday, May 23, 2006
Clinton's Guantanamo
How the Democratic president set the stage for a land without law.
...True, the Bush administration's record on that score has been nothing short of shameful. Our government has, with its actions there, harmed apparently innocent people, alienated loyal allies, created a rallying cry for jihadists, and increased the dangers to our own troops if they're ever captured. What's overlooked in the smug condemnations, however, is that the Clinton administration helped pave the way for this current mess.
We sometimes forget that during the Clinton presidency, the United States ran an extralegal detention camp on Guantanamo—and went to federal court to defend its right to do so. The camp during the Clinton years was by no means the nightmarish operation it is now; certainly, there weren't allegations of torture. But Guantanamo under Clinton produced its own share of suffering and abuses—and perhaps most important for today, the court decision that shut it down was eventually wiped off the books, thanks to legal maneuvers by the Clinton Justice Department....
...In response, the Clinton administration finally shut down the camp and allowed the Haitians to come to the United States. At the same time, though, the administration managed to undo the new precedent recognizing due process rights for foreigners on Guantanamo. In negotiations with attorneys for the refugees, the Justice Department agreed that it would not appeal the ruling, but only if the lower court decision was vacated—that is, erased from the books. The refugees' lawyers agreed to the deal because they feared they would lose if the case went to the Supreme Court, which had already intervened in favor of the government at earlier stages of the litigation. As a result, the judge's landmark decision that due process applies on Guantanamo doesn't exist anymore, technically speaking.
Why did the Clinton Justice Department insist on snuffing out the precedential value of the Guantanamo ruling? In later interviews, Clinton national security officials explained that they feared future refugee crises in the Caribbean and couldn't afford a court precedent that might limit their options for handling the situation. Using words that have a prophetic ring today, one official commented that White House advisers wanted "maximum flexibility" on Guantanamo, "confident that they would do the right thing but not wanting to be forced by the law to have to do so."
...But of course, the Bush dynasty was interrupted by Bill Clinton in 1992—and his record on Guantanamo was an ugly one. Despite signals on the campaign trail that he intended to shut down the camp, Clinton changed his mind. As a result, the refugees remained, even after he assumed office, in leaky barracks with poor sanitation, surrounded by razor wire and guard towers. They responded with a hunger strike, and after raucous protests against their confinement, a number were thrown in the naval brig as if they were criminals. (Here's a videotape of a crackdown against the Haitians while Bush I was still running the camp.) Worse still, federal authorities refused to release the sickest Haitians, even though military physicians on Guantanamo lacked the means to treat them.
The Clinton White House justified this atrocious conduct in terms that sound strikingly familiar today. Justice Department attorneys maintained that foreigners held by the United States at Guantanamo Bay have absolutely no legal rights, whether under the Constitution, federal statutes, or international law. According to this logic, the Clinton White House was free to treat the detainees however it pleased. (There was some plagiarism here. The Clinton folks took this argument from the Bush administration lawyers who'd first defended the camp.)...
...In response, the Clinton administration finally shut down the camp and allowed the Haitians to come to the United States. At the same time, though, the administration managed to undo the new precedent recognizing due process rights for foreigners on Guantanamo. In negotiations with attorneys for the refugees, the Justice Department agreed that it would not appeal the ruling, but only if the lower court decision was vacated—that is, erased from the books. The refugees' lawyers agreed to the deal because they feared they would lose if the case went to the Supreme Court, which had already intervened in favor of the government at earlier stages of the litigation. As a result, the judge's landmark decision that due process applies on Guantanamo doesn't exist anymore, technically speaking.
Why did the Clinton Justice Department insist on snuffing out the precedential value of the Guantanamo ruling? In later interviews, Clinton national security officials explained that they feared future refugee crises in the Caribbean and couldn't afford a court precedent that might limit their options for handling the situation. Using words that have a prophetic ring today, one official commented that White House advisers wanted "maximum flexibility" on Guantanamo, "confident that they would do the right thing but not wanting to be forced by the law to have to do so." ...
