Editorials of The Times

Posted January 16, 2018 9:40 p.m. EST

Guantánamo’s Forever Prisoners

Even before he took office, President Donald Trump made it clear that no one would be getting out of the military prison at Guantánamo Bay, Cuba, on his watch. They were “extremely dangerous people,” he said. It didn’t matter how long they had been locked up or whether they had been charged with any crimes. They should give up any hope of release.

Trump wasn’t just walking away from the efforts of his two predecessors to shrink the population of the prison and, eventually, to close it. He wanted to make it bigger — to “load it up with some bad dudes,” as he said.

Today, 41 men remain at Guantánamo. Thirteen either have active cases in the military commission system or have been convicted. The rest have been held as enemy combatants, but without charge, for up to 16 years. Five of those have been cleared for transfer, meaning that the Pentagon, the White House and intelligence agencies long ago agreed that they pose no security threat. Many of these men were arrested under questionable circumstances; some were tortured, either at CIA black sites or at Guantánamo itself.

Last Thursday, 11 of these “forever prisoners” filed a habeas corpus petition in U.S. District Court in Washington, D.C. The men, all foreign-born Muslims, say their continued detention violates the Constitution’s guarantee of due process and the 2001 law that gave presidents the power to send enemy combatants to Guantánamo.

One of the plaintiffs, prisoner No. 893, a 45-year-old Yemeni named Tolfiq al Bihani, has been held at Guantánamo for nearly 15 years. He was cleared for conditional release in 2010. The Saudi government agreed to accept him in 2016, along with nine other Yemenis. Those nine were all transferred, but al Bihani remains at Guantánamo without explanation.

President George W. Bush may be guilty of creating the constitutional calamity that is Guantánamo, but at least he made an effort to empty it of men who clearly posed no threat to the United States, releasing 532 detainees by the end of his second term. President Barack Obama, who was blocked by Republicans in Congress from keeping his campaign promise to close the prison, established regular reviews of each inmate’s case and worked intensively to negotiate the transfer of those who could not be returned safely to their home countries. In the end, he released 197 detainees.

During the 2016 presidential campaign, Trump bragged that he would “absolutely authorize” torture techniques like waterboarding, on the ground that terrorism suspects “deserve it anyway.” The remaining Guantánamo prisoners appear fated to stay locked up not based on an individual assessment of their cases — there will be none of those under Trump — but because they serve as convenient symbols of the aggressive anti-terrorist and anti-Muslim platform he ran on.

And yet the men make a straightforward case for their release. The Supreme Court has ruled that prisoners at Guantánamo must have a “meaningful opportunity” to challenge the legal and factual grounds for their detention, which means that the federal courts have the power to review those claims and grant any appropriate relief.

If the Constitution stands for anything, the plaintiffs argue in their suit, which was filed on their behalf by the Center for Constitutional Rights, it must stand for the proposition that the government cannot detain someone for 16 years without charge.

The new legal challenge represents the sharpest test yet of America’s commitment to its most important founding principles — the guarantee of due process and the right to habeas corpus — at the Guantánamo prison. Will we continue to tolerate locking up more than two dozen men there, without charge, forever?

Is a Free Press Duterte’s Next Victim?

Even among that cast of illiberal leaders who rouse mobs with their ruthless policies and disdain for democratic protections, President Rodrigo Duterte of the Philippines stands out for his viciousness. He has effectively declared open season on those he and his minions accuse of being drug users and dealers, at least 4,000 of whom have been killed by the police and vigilantes since he came to office.

Exposing such brazen abuse of power is a hallowed mission of a free press, so it should come as no surprise that authoritarians like Duterte usually go after independent media. One particularly tenacious critic of the president’s vicious crackdown has been a leading online news site, Rappler, and on Monday the government announced that it was revoking its license.

Rappler has appealed the decision of the Securities and Exchange Commission of the Philippines, and in the meantime the website can continue to operate. The time would be well used by other governments and nongovernmental supporters of democracy to condemn this effort to silence independent voices.

Of course, Duterte should be condemned first and foremost for his blatant violations of human rights. But the ability of a democracy to repair the damage caused by bad leaders requires the survival of critical democratic institutions, a free press among them.

Like other populists sitting in presidential palaces around the world, and there are lamentably many today, Duterte had, at least until recently, enjoyed solid support, in his case from an electorate that has endured too much crime and corruption. An independent press is essential to explain why mass extrajudicial killings cannot be the right answer and to prepare the way for the restoration of the rule of law.

The action against Rappler is only the tip of Duterte’s assault on his media critics. His supporters have also made the Philippines a swamp of fake news, conspiracy theories and online harassment. Duterte has refused to condemn the flood and has denied any involvement in its creation. Predictably, he also denied that the revocation of Rappler’s license was political, and he said he didn’t care whether or not Rappler continued to operate.

Yet the SEC decision followed Duterte’s claim that Rappler had “American ownership,” which is the core of the case against the site (the Philippine Constitution bars foreign ownership of Philippine media). Rappler notes that it has reported that it has two foreign investors, but it says that they have no ownership stake and no control of the website.

“This is pure and simple harassment,” Rappler declared on its site, vowing to continue and urging readers “to stand with us again at this difficult time.” We urge the same.

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