Barack Obama believes in leading by deed and not just by word. Although he is yet to move into the White House formally, his mind is racing ahead to keep the promises he had made during his campaign. As early as June 2007, Mr Obama had announced that if elected, he would close the prison camp in Guantánamo Bay, restore habeas corpus and follow every constitutional procedure to give the detainees held there a fair trial. Mr Obama is now close to fulfilling his intention, although the legal implications of his action are bound to baffle even the best minds at his alma mater, the Harvard Law School. There can be little disagreement over the need to close the camp, but the question remains as to how to go about doing it. At present, there are about 250 prisoners in the camp. A majority of them — about 150 — would be sent back to their countries of origin. Of the rest, a group of 40-70 have admissible evidence against them and legally, they should be tried by a federal court in the United States of America. The remaining few would be simply released. But the problem with dissolving Guantánamo is not strictly a legal one. In fact, it is to do with the foundational principles and deepest structures of law.
Guantánamo challenges the very notion of justice. Who are the more guilty? The prisoners picked up from the ever-expanding ‘axis of evil’ that the Bush administration wanted to destroy? Or should George W. Bush and his cronies, who engineered and sanctioned the tortures on the detainees, be judged as well? There are sinister concentric circles here — conflating the victims and the perpetrators, the wronged and the wrong-doers. Law has been defeated here by the very system that it creates in order to deliver justice. In the wake of this year’s historic presidential elections, the US is expectedly anxious to dissociate itself from the shameful legacy of Guantánamo Bay. But, like the notorious Abu Ghraib, this camp on a Cuban island can hardly be wished away. The tortures that the US troops carried out on the prisoners, heartily approved by Donald Rumsfeld, need to be confronted and disclosed in an open court. If Mr Obama intends to follow due process, then closing Guantánamo would merely be a tentative closure, a false ending rather than a true conclusion. The curtain would come down once the courts are allowed to take the full measure of the atrocities in the camp.