Scott Horton writes: The Bush Administration originally created special-detention facilities at Guantánamo on the theory that—given the unique historical provenance of the base, which was secured under a lease at the end of the war with Spain on terms Havana no longer recognizes—no court anywhere in the world would have jurisdiction to deal with the complaints of prisoners held there. Consequently, it would be easier to subject the prisoners to torture and other cruel, inhuman, and degrading treatment the likes of which America’s prisoners in wartime had never before experienced. The Supreme Court soon put an end to this exercise, and a series of court rulings ensured that indeed there would be a form of court review and that prisoners would have access to counsel.

While Barack Obama campaigned on a promise to end torture and to humanize and then close Guantánamo, this promise has been left unfulfilled, in part because of Obama’s lack of resolve and in part because of the obstructionist games practiced by Republicans. Obama has chosen to disengage from the Guantánamo issue, and in doing so has essentially placed operations there on autopilot. And that has produced a remarkable degree of backsliding to the practices of the Bush era.

A clear-cut example recently emerged when lawyers serving as defense counsel at Guantánamo discovered that they were arbitrarily being denied access to their clients on the orders of a military commandant, despite a series of court orders dating back to 2004 that had guaranteed them access. The Obama Administration had put in place new rules under which only those prisoners who are actively challenging their detention are guaranteed the right to talk to counsel; otherwise the commandant has the right to deny access. Moreover, to have any access to clients at all, the lawyers were being pressed to sign a “Memorandum of Understanding” with the Department of Defense under which they consented to these new rules. [Continue reading…]