After intense international pressure, the Bush administration has begun to put some of the detainees on trial through military commissions, but even Col. Morris D. Davis, the chief prosecutor at Guantánamo Bay, is now prepared to testify to Congress that there “is a potential for rigged outcomes” in trials held there and that he had “significant doubts about whether it will deliver full, fair and open hearings.” Davis has made public his allegation that the general in charge of the military commissions has reversed his policy of refusing to use evidence derived through torture. Davis has also quoted the general counsel of the Pentagon, William J. Haynes II, as telling Davis that “we can’t have acquittals” at Guantánamo.

Even if those held at Guantánamo for as long as six years or more are eventually brought to trial, it is not at all clear that those trials will be fair, even by the rather modest standards of military justice. Those convicted by these kangaroo courts may well be sentenced death, based on confessions extracted by torture.

But it is important to understand how this extra-judicial regime was first established at Guantánamo, a no man’s land on Cuban soil that lies beyond Cuban control and outside U.S. law as well as being beyond international law.

The legal term habeas corpus from the Latin literally means “show me the body,” and it is the most fundamental right in the corpus of rights that constitute the tradition of English common law upon which the U.S. Constitution and the American tradition of jurisprudence are based.

While Hillary Clinton did state her opposition to the Military Commissions Act of 2006 that stripped Guantánamo detainees of their habeas corpus rights — both Clinton and Obama voted against it when it passed the Senate by 65-34 on September 28 of that year — Hillary has never publicly commented on the Clinton administration’s decision to establish the legal precedent for the Guantánamo regime in the first place.

In the wake of the September 1991 military coup that ousted Haiti’s first democratically elected president, the U.S. Coast Guard interdicted thousands of Haitian refugees who’d fled their country by boat and brought them to Guantánamo Bay. In 1992, the last year of his first and only term, George H.W. Bush ordered 300 of these Haitian refugees who had tested positive for HIV detained indefinitely without access to lawyers and held in leaky barracks behind razor wire. When Bill Clinton came into office, he continued the detention of these Haitian refugees.

Bill Clinton had won election in November 1992 as The Man from Hope, but to the Haitians in the AIDS death camp at Guantánamo, the situation looked hopeless until Harold Hongju Koh, a Yale University law professor, began working on their case with a group of his students. Brandt Goldstein documents the extraordinary story in his book, Storming the Court: How a Band of Yale Law Students Sued the President — and Won (Scribner 2005). In partnership with New York lawyer Michael Ratner, Koh and his students filed suit on behalf of the Haitian refugees. The Clinton Justice Department responded by moving to get the case dismissed and to have Yale and Koh punished with financial sanctions.

“Plaintiffs have been trying to use the courts to decide matters of national security, in place of the Defense Department, the Department of State, and the president himself,” Justice Department attorney Scott Dunn declared in arguing for the Clinton administration in federal court. “The courts have already decided that’s improper,” Dunn asserted, anticipating arguments that the Bush administration has made in defending the indefinite detention regime at Guantánamo since 2001.

Koh and his law students (’Team Haiti,’ as they called themselves) won the case of Haitian Centers Council v. McNary and the Clinton administration closed the HIV camp, But in exchange for releasing the detainees to come to the United States, Clinton disgracefully insisted that the Yale team drop its challenge to indefinite detention without trial at the discretion of the president; given the fact that many if not most of the refugees in the AIDS camp would be dead by the time any appeal was finally decided by the U.S. Supreme Court, Koh and his team reluctantly agreed to the deal.

Hence it was the Clinton administration that established the legal precedent for indefinite detention at Guantánamo without trial — thus providing the foundation for the current regime there at Camp X-Ray constructed by the administration of George W. Bush.

There is not a shred of evidence in the public domain that Hillary attempted to use her influence as First Lady to try to intervene on behalf of these detainees — mostly poor black women and children, some dying of AIDS, all of them deprived of medical attention as well as legal counsel by her husband. Since the case of Haitian Centers Council v. McNary was national news at the time, it is inconceivable that the then-First Lady knew nothing about it; but the only source that would document Hillary’s thoughts on the case of the Haitian refugees and any action she may have taken behind the scenes on it would be the presidential papers that the Clintons have refused to make public.

“Guantanamo has become associated, in the eyes of the world, with a discredited administration policy of abuse, secrecy, and contempt for the rule of law, Hillary Clinton declared when calling for the closure of the detention center at Guantanámo in April 2007. But nowhere in her statement at the Senate Armed Services Committee’s hearing on the issue was there any acknowledgement of the role of the Clinton administration in establishing the legal precedent for the “discredited administration policy of abuse, secrecy, and contempt for the rule of law” that Guantanámo represents.

If Hillary Clinton really intends to bring to an end the Bush administration’s assault on the principle of habeas corpus and the Constitutional limits on presidential authority, she has an obligation to acknowledge publicly the Clinton administration’s role in establishing the precedent of indefinite detention at Guantánamo without trial, and she must take full responsibility for that legal precedent by explicitly denouncing it without qualification.

Originally posted as Guantánamo: The Clinton Legacy