NEWS reports have recently surfaced that the Pentagon is preventing President Obama’s most recent attempt to shut down the detention centre at Guantanamo Bay. Shutting down the infamous military prison, which still houses over 100 inmates, was one of Obama’s major campaign promises during his first presidential campaign; the Pentagon’s attempts to stymie its closing will impact his political legacy.

The detention centre was set up to try ‘war criminals’ by US military commissions and to detain those individuals, including terrorists, who posed a serious threat to US national security during America’s global war on terror. It was situated on foreign soil in an attempt to limit due process protections under the US legal system.

The Guantanamo prison system violates international law: detainees are deprived of essential fair trial protections and denied other judicial guarantees mandated under International Humanitarian Law; they were classified as “unlawful enemy combatants” so that they could be denied prisoner of war or civilian legal status. Guantanamo inmates have been subjected to torture and cruel, humiliating and degrading treatment, strictly prohibited under Common Article 3 of the Geneva Conventions that sets out minimum legal protections accorded to everyone at all time.

The Guantanamo prison system violates international law.

The arbitrary, indefinite detention of Guantanamo inmates, including those who have never been charged with a crime or been tried for criminal activity, and the continued incarceration, often for years, of those deemed innocent or cleared for release is a violation of the International Covenant on Civil and Political Rights and the Convention Against Torture, which the US has ratified.

Congress continues to oppose the transfer of Guantanamo prisoners to the US and has prevented such transfers through federal legislation. But in 2014, under the latest National Defence Authorisation Act, restrictions on the transfer of detainees to third countries were relaxed. The current stand-off between the White House and Pentagon can be attributed to the latter’s opposition to this relaxation, and its employing delaying tactics to prevent such prison transfers. Possibly, the Pentagon fears an increase in transfers might lead to Guantanamo’s closure before Obama leaves office. With a new president, chances of closing down the prison seem less likely to the military.

The US military is currently dragging its feet by not sharing necessary records, documentation and interviews of prisoners required by third countries to effect transfers, and is making it difficult for foreign state delegates to travel to Guantanamo and interview inmates. Its argument is that sharing information and interviewing prisoners violate the latter’s right to privacy, and is contrary to its legal obligation of not exposing POWs to public curiosity.

Militaries have different attitudes and values, and narrower end goals than politicians. The US military is no different, and it seems to care less about international relations and diplomacy, legal protections and rights, than military expediency. It seems unconvinced of the ability or willingness of foreign governments to monitor those freed or incarcerate those sent back for detention. Many governments have often freed Guantanamo inmates as soon as they have returned home and the US military likely feels that if those transferred do become part of terrorist groups then it is the US armed forces that are principally at risk of being targeted in reprisal.

Something more significant is, however, at play here. The US war on terror, commenced by the conservative Bush regime, has viscerally affected the separation of powers within the US government. During Bush’s tenure, the executive, which includes the powerful military, appropriated substantial authority from the other branches of government. The ostensible fight against terrorism resulted in the militarisation of US civilian institutions in particular and its society in general.

For instance, while US law prohibits the use of the military for law enforcement, with the passage of numerous National Defence Authorisation Acts, there seems to be some sanction of the use of the military on home soil to target and intern terrorists. In the Senate, Republicans like Lindsey Graham — the chief architect of the Military Commission Act — openly advocate for the indefinite detention of US citizens for domestic terrorism-related arrests, and for the trial by military tribunals of terrorist suspects arrested on US soil.

It is apparent that a civil-military imbalance is present in the US with the military now starting to flex its muscle in civilian affairs including this latest challenge to the White House. This militarisation of society will continue to lead to serious challenges for constitutional freedoms and protections in the US, as well as strain democratic structures and processes if not checked in time.

The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.

Published in Dawn, January 4th, 2016