As the pages fly off the calendar in the countdown to Inauguration Day, people across the political spectrum are anxious to put the nasty business of Guantanamo behind us. It is a scandal that the detainees have been held so long, mostly without trials or judicial determination of whether they have been properly held. But because the legal and political problems are thorny, the most important thing is for the new administration to do nothing rash.
A tempting solution would be to abandon our leasehold at Guantanamo Bay and simply turn the property back over to Cuba — along with the detainees. Eventually the base will revert to Cuba, perhaps when Fidel Castro truly passes from the scene and a new regime is established there, but unfortunately we cannot so easily wash our hands of the problems the detainees pose.
Some of them should be sent home because no one now thinks they are dangerous. Many of those still being held are from Yemen; 17 are Uighur Muslims from Western China. It has undoubtedly been a challenge to repatriate some whom we no longer wish to hold, and we certainly do not want to send anyone back to death or persecution, which is the case with the Uighurs. An Obama administration, however, is likely to enjoy a honeymoon period with other countries, and perhaps for this reason it will be more effective than the outgoing administration in securing the cooperation of third countries in efforts to resettle those we are willing to release.
Military authorities say there might be 75 or so military commission prosecutions. The cases need to be screened again because there seems little reason to put on trial those whose criminality is no graver than that of Salim Ahmed Hamdan. In his case, a military jury and judge effectively imposed a sentence of only a few months’ duration, and the Executive Branch sent him home to Yemen to serve the short time remaining on his sentence.
Some of those slated for military commission trial deserve to be tried, but any trial ought to be in the regular federal courts, which have shown themselves to be entirely capable of trying terrorism cases. Think Zacarias Moussaoui, John Walker Lindh, Richard Reid (the “Shoe Bomber”), or those convicted for the 1998 bombing of our embassies in Kenya and Tanzania. District court trials may well prove embarrassing because defendants who have been tortured or otherwise mistreated will have a soapbox. But our country is strong enough to withstand that kind of heat. Indeed, giving Khalid Sheikh Muhammad and other “high-value detainees” a soapbox would be a sign of strength and actually serve our national interest in airing this dirty linen in public as it seems unlikely that we will prosecute our own personnel for torture. “High-value detainee” trials should not, however, be viewed as an alternative to a truth commission, which is called for in any event.
Might there be problems obtaining convictions in major cases? Yes, but at times any system of criminal justice has to settle for charges other than the gravest ones. Thus, Muhammad is already under indictment for his role in the 1993 World Trade Center bombing. Remember Al Capone? He was imprisoned for nothing graver than tax evasion.
Toss the military commissions overboard. Whether or not they could have been a viable institution, there is no way to revamp them to the extent needed to foster public confidence, here or abroad, in their administration of justice.
Nor are courts-martial preferable. It is too late to shift from one kind of military courtroom to another, and in any event our civilian federal courts enjoy greater public confidence, notwithstanding the improvements military justice has experienced since Congress passed the Uniform Code of Military Justice in 1950. What is more, courts-martial apply rules of evidence that are practically indistinguishable from those applied in the federal courts. As a result, there is no basis for assuming it would be possible to secure a conviction in a court-martial but impossible in a federal district court on the same facts.
As of noon on Jan. 20, we will have an administration capable at last of decision making consistent with our national values. Unlike the outgoing administration, this one will be headed by not one, but two lawyers, each of whom has pertinent credentials: President-elect Barack Obama as a professor of constitutional law and Vice President-elect Joseph R. Biden Jr. as chairman of the Senate Judiciary and Foreign Relations committees. They and their advisers should take the time to study the available options. Given the sad history of the last several years (as well as the overarching interest in national security), it is more important that we get it right this time than that the new president make a dramatic announcement in the first week of his administration. It is also critical that the decision-making process be transparent: If the Office of Legal Counsel has something to say, make its memorandum public at once, and not five years down the road by a leak or in response to a congressional subpoena or Freedom of Information Act lawsuit.
The new administration should suspend all military commission proceedings while it settles on an overall policy. Similarly, it should seek a “timeout” for all detainee-related litigation while it fashions a coherent legal strategy. In the long run, this will save time for everyone, including the detainees, who in the eyes of the world have become symbols of a failed system.
• Eugene R. Fidell is the Florence Rogatz visiting lecturer in law at Yale Law School, where he teaches military law. He is also president of the National Institute of Military Justice and a partner in the Washington firm Feldesman Tucker Leifer Fidell LLP.