The State Department office charged with closing the prison at Guantanamo Bay has been shut down, while Gitmo itself remains very much in business. And a recent ruling by the Supreme Court effectively notified rights groups — and all American citizens, really — that it’s none of their business whether the government is spying on their overseas phone calls and email.
The little-noticed announcement in January that the special envoy for closing the detention center at the Guantanamo Bay, Cuba, naval base was reassigned — and won’t be replaced — merely acknowledged the obvious: Congressional restrictions tying President Obama’s hands in various ways have made it all but impossible for the president to deliver on his campaign pledge to close the island prison.
Although the number of detainees has been whittled down through repatriations to a fifth of what it was at the height of the post-9/11 antiterrorism effort, Guantanamo still undermines America’s global standing and constitutes an affront to the rule of law.
Closing Guantanamo wouldn’t mean that terrorists go unpunished, only that suspects would be brought before federal judges, who have shown themselves perfectly capable of meting out justice for terrorism. To that extent, it’s a positive sign that following his recent capture in Jordan, Osama bin Laden’s son-in-law and onetime spokesman was taken to New York instead of Cuba to face federal charges.
While the remaining Guantanamo detainees designated as enemy combatants have few legal protections and little access to the courts, citizens who dial overseas should have a more clear-cut understanding of their right not to be spied on.
That was the legal case made by rights groups such as the American Civil Liberties Union, journalists, lawyers, and activists who suspect their contacts with people abroad were monitored after 9/11. Their challenge sought to overturn President George W. Bush’s authorization — and Congress’ subsequent endorsement — of warrantless wiretapping of international phone and e-mail conversations with anyone “reasonably believed” to be linked to a terrorist group.
At several points in the years-long case, Justice Department lawyers tried to fend off the ACLU and other litigants by contending that the case threatened to reveal state secrets.
Fortunately, lower-court judges allowed the challenge to go forward. But Orwellian logic finally won the day: Justice Samuel A. Alito Jr. wrote for a narrow conservative majority that because the targets of the surveillance are secret, those challenging it can’t prove they were being monitored.
What judicial oversight there is of National Security Agency surveillance occurs behind closed doors before a secret court that rarely denies spies’ requests. That’s clearly inadequate.
At the same time, there’s no evidence that providing citizens with greater protection from such surveillance would hinder the nation’s antiterrorism efforts. But the high court’s ruling means it’s up to Congress to undo this Catch-22 and restore American’s cherished privacy protections.