What good is America’s constitution if Guantanamo Bay still exists?

The officer in charge of the Guantanamo detainees, Rear Admiral John Ring, told visiting journalists earlier this month, “Two of them had an opportunity to get on an airplane and chose not to go. So how bad could it be here?”

Perhaps in the age of Trump, we have become inured to such Orwellian doubletalk. But we should not accept that men could be approaching two decades in captivity without ever having been charged with anything. Nor should we accept the narrative of Guantanamo as a Potemkin prison, a luxury billet where detainees are treated so well, they are happy to remain.

How bad could it be at Guantanamo? Very bad, for the men and for the rule of law.

Amidst the three ring circus of Trump’s America, Guantanamo has been largely forgotten as both a human tragedy and a constitutional debacle. Forty men remain there. Nine have been charged and thirty-one have never been charged with any crime and never will be. Five of those thirty-one have been cleared for release, some for more than ten years. Three of these men had countries ready to take them; one was packed and fitted for clothing to travel. Then President Trump took office.

Admiral Ring’s cruel joke about men not wanting to leave pulls a veil of falsehood over what is going on at Guantanamo. President Trump acted quickly after his inauguration to abolish the office for repatriating Guantanamo detainees. Under President Obama, there was a special envoy who had the job of repatriating or finding third countries to accept detainees and guarantee their safety and the safety of others. One hundred and ninety-seven men were repatriated or relocated. In 2011, Obama established the Periodic Review Board of senior officials from six federal agencies who conducted hearings focused on the detainees’ plans for the future and tried to make determinations about the risk they presented in the future. The PRB was required to make a unanimous recommendation and those recommendations were forwarded to the agency principals for action. Thirty-eight of the 72 men reviewed under the PRB process during the Obama era resulted in clearance for release.

In the Trump administration, it is no one’s job to try to resettle the five cleared detainees. And the PRB meetings in the Trump era have resulted in not a single new detainee being cleared for release. The Trump administration has held twelve full reviews, nine of which have resulted in denials with the other three simply not decided due to being overdue. The focus of the PRB inquiries has changed from whether, after all these years, a detainee presents a future risk, to pressing for admissions that can be used against that detainee if that detainee later tries to challenge his detention in a court proceeding. If you admit wrongdoing, you are dangerous and you have admitted it; if you do not, you lack remorse and candour and should not be released. Heads, we win; tales you lose.

Not surprisingly, these thirty-one men, many of whom have been incarcerated since late 2001 or 2002 do not see any reason to cooperate. They are not getting cleared and they are not getting repatriated. Only bad things can happen in these proceedings. And approaching their eighteenth year without a charge, a hope of release, or any timetable for either, some of these men are, not surprisingly, suffering from severe mental illness. Some feel helpless; some simply refuse to cooperate; and some are unable to engage in any interaction. Some are on years-long hunger strikes to protest their captivity; they are force fed with enteric tubes roughly thrust through their nose into their throats and stomach, two or three times a day.

The $11m per prisoner that the US spends on each detainee is not going into gourmet meals, or educational programs or luxury accommodation. It is spent on creating a maximum security environment. Prisoners are shackled hand and foot whenever they are moved. They are chained to the floor when they meet with their lawyers. The compound crawls with soldiers, surveillance equipment and armoured vehicles. There are multiple perimeters of razor wire, beyond which lies the shark-infested waters off Southern Cuba. To be sure, the government has just installed a padded cell in the medical complex and a new recreational facility for “super-compliant” prisoners where they can do art projects, although the Guantanamo authorities have changed the rules to prohibit any artwork from leaving the prison after the charitable organisation that I chair staged an exhibit of detainee art.

So how bad can it be? On a human level, it is a place of misery and despair. And on a larger level, it is a monument to the death of the rule of law. It is here that for the first time in our history, we have “forever prisoners”: men who have been imprisoned without charge, often without even credible evidence, and possibly left to die there. It is here that being a foreign Muslim in the wrong place at the wrong time can result in a life sentence. Justice Kennedy, in finding that detainees at Guantanamo have the right to challenge their detention, wrote, “The laws and constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” That decision was written more than ten years ago. The Supreme Court has not heard a Guantanamo case since. And forty men remain in legal darkness, perhaps forever. That is how bad it can be.

Eric Lewis is Chairman of Reprieve US, a charity that advocates against capital punishment and indefinite detention and has represented Guantanamo detainees for more than fifteen years. He is also a director of Independent Digital News and Media, which publishes The Independent. The views reflected are his own