It is now ten years since the United States began to hold suspected terrorists in Guantánamo Bay. At the time, the motivation was clearly to find a place outside of the immediate theatre of war where people could be held and interrogated without oversight from the federal courts. It seemed, to the US government, that Guantánamo Bay was just such a place as it was under the exclusive jurisdiction of the United States but strictly speaking outside of its territory and so—it was thought—outside of the jurisdiction of the courts. Although the number of people detained in Guantánamo is relatively small compared to the number of those held in other detention centres over the course of the War on Terror, including Bagram Airbase near Kabul, the camp has become a lightning rod for rights-based opposition to the United States’ contemporary approach to counter-terrorism. Closing Guantánamo Bay was a central plank of Barack Obama’s election campaign in 2008 and one of his first acts as President was to sign an Executive Order committing to its closure. This followed an important series of decisions (summarised here) by the US Supreme Court confirming that at least some parts of the Constitution applied to Guantánamo Bay and moving it—as I have written before—“towards legality”, i.e. towards constitutionalist oversight. Bearing all this in mind, how can it be that this prison remains open?

The US Constitution enshrines within it a delicate balance of powers between the branches of government, which includes oversight by Congress of the conduct and continuation of armed conflict through the use, especially, of spending authorisation legislation. This means that the allocation of federal funds to defence spending every year must be approved as a round figure by Congress, and it is in the context of these defence spending authorisation acts that the real political fight over Guantánamo Bay has taken place. During the latter period of the Bush Administration some attempts were made by Democrats to insert provisions in these bills that would force closure of Guantánamo Bay, but those attempts never reached fruition.

In contrast, since the inauguration of Barack Obama these pieces of legislation have been used to make it practically impossible for Obama to close Guantánamo Bay. In the 2011 defence spending authorisation we saw the prohibition of any expenditure of monies in any fashion that might result in closure (including in the purchase of any domestic facility to hold detainees transferred from Guantánamo) as well as the imposition of structural oversight barriers to the transfer of individuals out of Guantánamo Bay and into any other state (I summarise these, up to the 2011 authorisation legislation, in [2012] PL 18 available on Westlaw UK). Although he did not veto this Act, President Obama did attach what is known as a signing statement to it. This is a statement of presidential interpretation of the legislation being signed into law. In this case Obama did not express the view that the provision in question was unconstitutional, but did signal his dissatisfaction with it and noted that he felt it interfered with his constitutional powers.

This signing statement did not, however, prevent Congress from putting in a repeat performance with even more gusto than before as it prepared the 2012 defence spending authorisation act. Sections 1031 and 1032 of the Act deal with indefinite detention of suspected terrorists and appear to expand the pre-existing understanding of when suspected terrorists can be indefinitely detained without trial. Indeed, it arguably expands the detention power to US citizens (although Obama signed a signing statement saying that he would not detain US citizens without trial…a future president may abandon that undertaking, however) and certainly permits the indefinite detention without trial of non-US citizens captured on US soil.

This provision concretises the idea of indefinite detention in American law, without attendant safeguards that one might expect and without—it should be said—any clear indication that this was required or desired by the Executive branch. This enshrinement should be a cause for some concern, not only because of its failure to put in place any effective safeguards or systems around detention decisions (and I have argued before that such systems are at least theoretically possible), but also because it indicates the continuing political commitment to a policy that has been found to be ineffective, counter-productive, conducive to the perpetration of torture on individual detainees, and containing various unconstitutional elements as well as violations of international law. It is further evidence of what I have argued is the counter-constitutionalism of the United States Congress when it comes to Guantánamo Bay.

What I mean by this is simply that rather than recognise and adhere to constitutional and constitutionalist limits to detention in Guantánamo Bay that have been laid down by the Courts and, through his speeches and representations, by President Obama himself, Congress continues to fixate on maintaining Guantánamo Bay as a base for counter-terrorist detention. This worrying trend is a snub to decisions of the Supreme Court and decisions of the Executive and a snub to constitutionalism itself that seems to me to have much more to do with politics and political posturing than it does with any ‘big vision’ of how constitutional power ought to be distributed between the branches of government. It also bodes ill for the prospects of the prison there being closed at any time in the foreseeable future and suggests that the 2012 presidential campaign in the United States will not be one in which constitutionalism features highly in the counter-terrorist rhetoric.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk