Newly released documents underscore the Bush Administration's excesses and President Obama's failure to remedy them

In the flurry of weekend stories about Gitmo and the detainees there, the most striking detail to emerge is this one:

On Obama's inauguration night, when the new administration instructed military prosecutors to seek the suspension of all proceedings at Guantanamo Bay, defense lawyers at the base formed a boisterous conga line.

"Rule of law, baby!" they shouted.

So much is contained in that gesture.

1) Before September 11, 2001, the rule of law was a presumption in American life. Thanks to the Bush Administration, Congress, and a complicit citizenry, it ceased to be.

2) There are Americans for whom a victory for the rule of law is cause to form a conga line. That is wonderful. And reassuring. (These are, by the way, the kind of people that Liz Cheney, Bill Kristol and Michael Goldfarb dubbed "the Al Qaeda seven" in one of the most scurrilous political attacks in memory.)

3) There is no better symbol of President Obama's promise to remedy the excesses of his predecessor than those dancing lawyers -- and it is especially affecting to read about their celebration knowing how fully the man on whom they pinned their hopes would ultimately fail them.

What else did we learn this weekend?

The best-documented case of an abusive interrogation at Guantanamo was the coercive questioning, in late 2002 and early 2003, of Mohammed Qahtani. A Saudi believed to have been an intended participant in the Sept. 11 attacks, Mr. Qahtani was leashed like a dog, sexually humiliated and forced to urinate on himself. 

The New York Times also reported on the methods the Bush Administration employed when trying to figure out if a detainee was harmless or a dangerous enemy. Some of them reek of amateurism:

A prisoner caught without travel documents? It might mean he had been trained to discard them to make identification harder, the guide explains. A detainee who claimed to be a simple farmer or a cook, or in the honey business or searching for a wife? Those were common Taliban and Qaeda cover stories, the analysts were told. And a classic Catch-22: "Refusal to cooperate," the guide says, is a Qaeda resistance technique...

Guantanamo emerges from the documents as a nest of informants, a closed world where detainees were the main source of allegations against one another and sudden recollections of having spotted a fellow prisoner at a Qaeda training camp could curry favor with interrogators. The assessments of many detainees amount to long lists of fellow prisoners' claims about them.

What could go wrong?

Lest you think that official safety assessments, however questionable, formed the basis for who was kept and released, guess again:

Most European inmates were sent home, despite grave qualms on the analysts' part. Saudis went home, even some of the most militant, to enter the rehabilitation program; some would graduate and then join Al Qaeda in the Arabian Peninsula. Yemenis have generally stayed put, even those cleared for release, because of the chaos in their country. Even in clearly mistaken arrests, release could be slow.

For me, the most infuriating cases are the ones like this:

One Afghan, Mohammed Nasim, was sent to Guantánamo in May 2003 under the belief that he was a notorious Taliban military commander of the same last name. By March 2004, analysts had realized their error: "It is assessed that the detainee is a poor farmer and his arrest was due to mistaken identity." Yet, a review tribunal considered his case later that year as if he were the Taliban commander, and he was not sent home until April 2005 -- two years after he arrived at the prison.

Incontestable fact: the Bush Administration held for years people it knew to be innocent. In doing so, it was aided by the credulous apologia published by some Bush friendly journalists and bloggers.

The Bush Administration created this mess. President Obama and Eric Holder share blame for failing to clean it up. Ultimately, however, responsibility rests with the American people. Our citizenry is composed of too many whose outrage is stoked more by the prospect of expiring tax cuts or public employee benefit reductions than by caging innocent foreigners for years on end.

In granting that to Presidents Bush and Obama, and to their respective Congresses -- even setting those cases aside as fraught whatever happens -- let's not forget that America's behavior has been indefensible in many of the easiest Gitmo cases. That's what happens when the rule of law is abandoned, replaced by political calculation, Kafkaesque procedures, and whim.

That's why reasserting the rule of law would still be cause for a conga line.    

Photo credit: Reuters

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