Closing Guantanamo

Closing Guantanamo

Author:
Greg Bruno, Staff Writer

February 12, 2009


Introduction

On his second full day in office, President Barack Obama signed an executive order calling for the closure of the detention camp at the Guantanamo Bay Naval Base in Cuba. White House officials say the move is part of an effort to repair America's image abroad and will include assurances that the United States does not torture. "We will uphold the rights of those who we bring to justice," Vice President Joe Biden told European leaders in Germany in February 2009. "And we will close the detention facility at Guantanamo Bay." The order has been met with praise from many lawmakers and human rights advocates, though recently departed U.S. officials have voiced skepticism. Former Vice President Dick Cheney, in an interview with Politico, called Guantanamo a "necessary" facility that, if closed, would put Americans in danger and increase the recidivism rate of terrorists.

For some Guantanamo inmates, "we are going to have to give them some kind of residency.” -- Noah Feldman, CFR adjunct senior fellow

But Obama's departure from the policy of the Bush administration poses a string of legal and security issues--from how to charge inmates, to how to safely release those no longer deemed a threat--that will test his deadline of January 22, 2010, as the date for Guantanamo's closure. "The public debate has really shifted from the issue of whether to close Guantanamo, to how," says Matthew Waxman, a CFR adjunct senior fellow and former deputy secretary of defense for detainee affairs in the Bush administration. The how questions, he says, are more difficult, but "in many ways more consequential."

The Guantanamo Inmates: Who Are They?

As many as 800 prisoners have passed through the Guantanamo prison camp since its inception in 2002; about 250 remain. The majority of these prisoners were captured in Afghanistan or along the Pakistan-Afghanistan border in the early U.S.-led efforts to shut down safe havens linked to terrorists who plotted the September 11, 2001 attacks in New York and Washington. Of those, more than one-third are Yemeni nationals, though the facility holds prisoners from thirty countries, including Algeria, China, Pakistan, Saudi Arabia, Syria, and Canada, according to an analysis of military documents by the New York Times. Alleged charges range from suspected support to Taliban and militant organizations, to serving as a security guard for Osama bin Laden.

The inmates fall into three distinct legal categories (PDF), legal experts with the U.S. Congressional Research Service conclude in a January 2009 assessment: so-called enemy combatants held to prevent them from returning to the battlefield; enemy combatants who are pending or likely to face criminal charges for terrorist activity; and prisoners who have been cleared for transfer or release to a foreign country but remain in U.S. custody because of concerns they may be mistreated upon transfer. Each one of these categories carries specific legal issues the Obama administration will be forced to contend with before deciding inmates' fates, experts say.
The Guantanamo Inmates: How to Try Them

The first step to closing the camp will be to determine how many of the inmates can actually be charged with a crime, and experts say determining that has a number of components. For one, U.S. officials will have to decide which inmates can be charged with an identifiable crime, such as conspiring to wage an attack. Once that list is made, authorities will then have to wade through evidence to identify which cases to bring forward. Finally, the government must make determinations on which cases have evidence that is admissible, "i.e., did you get it by waterboarding somebody, or is it fourth-party hearsay," says Feldman. If, after answering all these questions, U.S. authorities decide to pursue charges, the Obama administration will have to determine where to try them. The following are the options most often mentioned:

* Military Commission: Such commissions were created to try "unlawful enemy combatants" and legalized under the Military Commissions Act of 2006. In particular this system sought to limit detainees' ability to challenge their detention via habeas corpus petitions (a ruling that was later overturned); allow hearsay evidence into trial; and keep the death penalty as an option. Approximately twenty detainees are currently facing charges before these commissions, according to the Congressional Research Service. Some legal scholars and human rights activists have criticized them as unconstitutional.

* Military Court-Martial: While court-martial proceedings have not been used to try detainees, legal experts say the Obama administration would have the authority to charge suspects under the Uniformed Code of Military Justice (UCMJ). Some, including legal experts with the Congressional Research Service, suggest the current UCMJ structure might run counter to constitutional protections such as the right to a speedy trial.

* Federal Civilian Court: Obama has called for an examination of whether detainees could be prosecuted in federal civilian courts, an option some legal advocates have pushed for years. A September 2008 assessment (PDF) by the Center for Strategic and International Studies, a Washington think tank, says federal courts have a proven track record in trying international terrorism cases: 145 convictions since 2001, versus just two for Guantanamo military commissions. Yet even this option has potential legal hurdles, experts say, notably statute of limitation concerns. Concerns about hearsay evidence and coerced evidence gathered during detention could also complicate future proceedings. A top Bush administration official told the Washington Post in January 2009 that she refused to recommend charges for a Saudi national accused of plotting the Sept. 11, 2001 attacks because of concern evidence was gathered during torture. CFR's Waxman says the Obama administration "is likely to break from the Bush administration" and pursue the federal court option.

* National Security Court: Lastly, some legal experts have backed the creation of a new hybrid court combining elements of civilian and military systems. A Wall Street Journal editorial says such a system would "allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions." Georgetown Law professor Neal K. Katyal, who has been tapped to serve as a principal deputy solicitor general in the Justice Department, says while such a system must be crafted with caution, it may be the best option. But Deborah Colson of Human Rights First warns (NYT) that such a system would ensure "fewer due process protections than those guaranteed in ordinary criminal courts," and would create a "state-side replica of the Guantanamo legal regime."

The Guantanamo Inmates: Where to Send Them

President Obama's order states that persons in detention at Guantanamo at the time of closure "shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States." The order also calls for review of individual cases to assess whether charges will be forthcoming, and how to proceed. Making good on executive intent will take creative legal solutions, experts say. Most legal scholars believe the eventual solution will incorporate a mixture of the three scenarios described below, though each option carries significant legal landmines:

* Transfers Abroad. The majority of prisoners that have already passed through Guantanamo were transferred to third countries for continued detention or eventual release. Most of those went to Saudi Arabia or Afghanistan, according to a December 2008 analysis by the Brookings Institution (PDF). But while sending inmates abroad, either to their home country or a third country that agrees that take them, may be the United States' preferred option for detainees who remain, international law could prevent the United States from doing so in some cases. Under Article 3 of the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (to which the U.S. is a signatory) it is illegal to "expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." The United States has been in negotiations with Yemen to accept inmates who are Yemeni nationals, but negotiations have broken down over concerns detainees could be tortured. Revelations that former inmates returned to violence in Yemen is also likely to complicate plans for Guantanamo's closure (NYT). In December 2008, Portugal offered to take some inmates off U.S. hands, and since then France, Spain, and Sweden have expressed willingness. But other nations have voiced reluctance (Deutsche Welle).

* Transfers to U.S. Soil. Given the legal obstacles to relocating hard-to-place inmates abroad, most experts believe a portion of the camp's population will be transferred to U.S. soil. But this option, too, will present a number of challenges. Political skirmishes are likely to emerge in legislative districts where inmate transfers are proposed; Sen. Sam Brownback (R-KS) says he will "keep up the fight" (AP) in his state's efforts to prevent Washington from using the military brig at Fort Leavenworth. There are also immigration issues to consider. Experts say noncitizen detainees transferred to the United States may have different rights under immigration law than they did in Guantanamo. Some scholars say the Immigration and Nationality Act forbids such transfers; the law bars entry of aliens suspected of terrorist-related activities. And while legal work-arounds are possible, others note loopholes could open the door for detainees to apply for asylum once in the United States. Yet as CFR Adjunct Senior Fellow Daniel B. Prieto notes, federal prisons already hold a number of international terrorists, including Ramzi Ahmed Yousef and Mohamed Salameh, convicted of bombing the World Trade Center in 1993.
* Release: In cases where detainees are not expected to be charged and are no longer deemed a threat to the United States, release might be an option. This could mean handing over prisoners to home countries. Yet in cases where returning inmates could open them to possible torture, the United States might opt to release them domestically. Noah Feldman, a Harvard Law professor and CFR adjunct senior fellow, says top candidates for this option include Yusef Abbas and sixteen other Chinese Uighur Muslims cleared for release in October 2008 (NYT) but who remain in U.S. custody. "We've ascertained they are not dangerous, but nobody will take them except for China," where the United States fears they might be tortured, Feldman says. "We are going to have to give them some kind of residency."

Constitutional and Other Considerations

The Bush administration created Guantanamo in January 2002 to detain terrorism suspects beyond the reach of U.S. laws while restricting the ability of inmates to challenge their detention. The system has faced a string of legal challenges. Notably in June 2008, the U.S. Supreme Court ruled in Boumediene v. Bush that the constitutional right to challenge one's detention--the writ of habeas corpus--extends to inmates held in Guantanamo. Yet even this landmark case--a significant blow to Bush administration policies--did not settle the question of constitutional protections to noncitizens held at the facility. Officials in the Obama administration such as Secretary of Defense Robert Gates have said these outstanding concerns may need to be addressed with new legislation.

Beyond the prison and the specific legal issues with shutting it down are a series of more philosophical concerns. Broadly speaking, legal experts believe there remains a credible legal basis for the continued detention of terrorism suspects in America's war against terror. But there is wide disagreement on how the United States should redefine its counterterrorism policies, and ensure the detention, treatment, and prosecution of suspects meets ethical and legal norms. CFR's Prieto argues in a February 2009 working paper that these changes are needed "to allow the United States to end its war about terror and remove what is currently a damaging and self-imposed obstacle to achieving broader U.S. foreign policy objectives."

Laws governing the treatment of terrorism detainees, which experts say would remain unchanged in the wake of Guantanamo's closing, will also be closely watched by foreign governments critical of the Bush administration's approach to detention matters. While detainee interrogations are now governed by the United States Army Field Manual, White House leaders have hinted they may want to keep their options open. During his Senate confirmation hearing on February 6, the nominee to head the Central Intelligence Agency (CIA), Leon Panetta, said he would examine the effectiveness of coercive interrogation techniques used by the intelligence agency, prompting some to speculate the CIA may seek the use of techniques that go beyond those used by the U.S. military (LAT). There are also questions about U.S. detention policies elsewhere, notably Afghanistan. Roughly six hundred prisoners continue to be held in a prison at the U.S. air base at Bagram, Afghanistan. In a 2008 confidential memo reviewed by the New York Times, the International Committee of the Red Cross reportedly voiced concern over the treatment of some prisoners detained at the base, charges the Defense Department would not discuss. President Obama, meanwhile, has called for the attorney general and defense secretary to conduct a comprehensive review of the government's policies on military detentions.



Weigh in on this issue by emailing CFR.org.

Source