One of the biggest disappointments among progressives who helped elect President Obama has been his inability, willing or not, to close the military detention center at Guantanamo Bay.

Furthermore, for civil libertarians who had some vain hope that Obama meant what he said during the 2008 campaign about shuttering the prison, the persistent incarceration of these disparate foreigners — the vast majority of whom have no links to al Qaeda (but were picked up in Pakistani “bounty” nets), and more than half of whom have been cleared to go but won’t be released — has been a grim reminder that most politicians are often just a nebulous projection of what we want them to be, not what they are.

Currently there are 163 prisoners still languishing at Gitmo, which my friend and former defense lawyer for the Office of Chief Defense Counsel for the Military Commissions, Lt. Col. Lorraine Barlett, calls the “the 21st Century version of Devil’s Island.” Just a few months ago, Barlett and several of her colleagues went on record with The American Conservative, explaining that the prison and the military have made it virtually impossible for them to guarantee attorney-client privilege and confidentiality. It seems the Pentagon has backdoor access to all of their electronic communications, and the prison now reviews all incoming legal mail bound for their clients. In other words, they can’t promise to represent their clients wholly and honestly.

The complaints, on top of years of setbacks, add up to the same thing: these attorneys cannot uphold the rule of law in a system where the military acts as police, jailer, judge and jury.

Col. Morris Davis, who resigned his post as chief prosecutor at Gitmo in 2007 over the use of evidence he said was procured through torture, called the military tribunal “a pretext of justice” in lieu of “just executing people.” “It’s certainly not a proud moment in our nation’s history,” he told TAC earlier this year.

The shame keeps coming. Last week, attorneys for detainee Yasein Khasem Mohammad Esmail filed a complaint with a military judge over a recent Justice Department memo which indicated that unless the defense signs a new “memorandum of understanding” placing all communications and visits under the strict control of the prison commander, they won’t see their client again. This, according to a great analysis by Lyle Denniston at SCOTUSblog, would also mean that the lawyers could not share information gleaned from client visits with other defense attorneys, nor would they be able to use it to build their own case for Esmail were he eventually tried for terrorism before a military tribunal.

The Justice Department says that Esmail’s legal challenge under habeas corpus was denied and “terminated,” so his access to defense, as well as anyone else’s whose habeas challenges have been “terminated,” must be limited accordingly. In their own court challenge, Esmail’s lawyers contend that his representation is guided by a 2004 protective court order that still stands whether habeas is denied or not, and that it is unclear whether habeas for the detainees, as interpreted by in Boumediene v. Bush in June 2008, can even be “terminated” in the first place.

It looks like the military, bolstered by the Obama Administration, is putting the screws to detainees who invoked habeas to contest their detentions but eventually lost, according to The New York Times in a rare foray into the Gitmo morass last week:

The Obama administration’s latest overuse of executive authority at Guantánamo Bay is a decision not to let lawyers visit clients in detention under terms that have been in place since 2004. Because these meetings pose little risk and would send a message about America’s adherence to the rule of law, the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing….

Four years after the Supreme Court ruled that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” the government may be calculating that it can decide what “meaningful” means. But if the wars where detainees were captured have been to defend American interests, surely the country has an interest in an unequivocal commitment to the rule of law, including full legal representation for detainees.

Glenn Greenwald, too, was blunt: “Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees — including the basic right to legal counsel — are being constricted further, in plainly vindictive ways.” He also suggests that anyone who believed Obama would be better on this issue than his predecessor should have been paying closer attention in 2009 when the new president announced a plan to merely relocate what was inside Gitmo (uncharged detainees, indefinite detentions and all) to domestic prisons under a new and deceptive paradigm:

The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.

Barlett complains that “our courts are now more concerned with political justifications for sustaining the Guantanamo operation than with actual justice for the detainees.” Greenwald claims that is what Obama wanted all along, but on his own terms.

Silly us who thought he stood for anything different.