President-elect Barack Obama’s promise to close the Guantanamo Bay prison camp for suspected terrorists will force him to decide what to do with inmates who can’t be tried for war crimes but are deemed too dangerous to be released.
About 250 detainees remain at the prison camp, opened on a U.S. Navy base in Cuba after the Sept. 11 attacks. More than 520 others have been repatriated or sent to another country. Mr. Obama said Nov. 16 on CBS that he will close the prison as part of an effort, including a ban on torture during interrogations, “to regain America’s moral stature in the world.”
Logistically, Mr. Obama may be able to “close Guantanamo pretty quickly” once he finds facilities on the mainland to house the prisoners, said Matthew Waxman, a former Defense Department official who teaches law at Columbia University. “The bigger issue is: On what legal basis are you going to hold them?”
More than 100 inmates can’t be put on trial because of a lack of evidence, but the Bush administration considers them too dangerous to release. Legal experts suggest several options, such as keeping them under the Bush administration designation of “unlawful enemy combatants,” labeling them prisoners of war or asking Congress to create a new type of preventive or administrative detention.
Mr. Obama has called for trying detainees in civilian or regular military courts instead of the military war-crimes tribunal created in 2006. Khalid Sheikh Mohammed, the self-proclaimed mastermind of al Qaeda’s Sept. 11 attacks, and four co-defendants are scheduled to appear before a tribunal next week, possibly their last hearing if Mr. Obama quickly abolishes or replaces the war-crimes courts.
Defense Secretary Robert M. Gates, who will remain in Mr. Obama’s administration, said at a press conference Dec. 2 that closing Guantanamo should be a “high priority” and that new legislation will be needed to keep released detainees from seeking asylum in the United States. In May, Mr. Gates said the United States was “stuck” with Guantanamo because some inmates couldn’t be charged or released.
Mr. Obama’s first step should be to announce a plan to close Guantanamo, then review all detainee files to determine which ones can be prosecuted, said Jennifer Daskal, counterterrorism counsel for Human Rights Watch.
That will depend on whether the evidence meets the higher standards of proof required in civilian or regular military courts, including a ban on evidence obtained by coercion, experts say.
Such legal determinations may complicate the prosecution of such “high value” detainees as Mohammed, who has claimed during courtroom appearances that he was tortured in CIA custody.
The CIA said he was one of three inmates subjected to waterboarding, an interrogation technique that simulates drowning. If his statements on the Sept. 11 attacks are barred from use in court, Mohammed still could be taken to trial on 1996 criminal charges of conspiring to blow up U.S. airliners en route to the Far East.
In addition to the Sept. 11 defendants, 12 other persons await trials before the military tribunals. The Pentagon is preparing to bring war-crimes charges against as many as 80 detainees.
The new administration should “move quickly to repatriate or resettle others,” Miss Daskal said.
Resettlement won’t be easy. The Pentagon has determined that at least 60 Guantanamo detainees are releasable if the U.S. can persuade other countries to accept them.
Almost 20 have been released in the past seven months. The latest is Salim Hamdan, a former bodyguard and driver for al Qaeda leader Osama bin Laden. Hamdan, convicted of providing material support for terrorism, was sent from Guantanamo to Yemen in November to serve the final month of his 5 1/2-year sentence.
More than 100 inmates are classified as not releasable because they can’t be put on trial but they pose a threat to national security.
The new administration may decide to continue to hold this group as enemy combatants subject to periodic administrative review, though Mr. Obama criticized the procedure in 2006.
Federal judges in Washington are considering about 200 Guantanamo inmates’ challenges to their detention, and the Supreme Court has signaled there may be a limit on indefinite detention.
Mr. Obama also could ask Congress to create a new legal status called preventive or administrative detention. Mr. Waxman said that would be “politically controversial” and trigger a debate about “the dangers to our legal system and legal principles that flow from institutionalizing a system of detention without trial.”
Alternatively, the Obama administration could declare those detainees to be prisoners of war, which would remove them from the jurisdiction of federal courts.
Under the Geneva Conventions, prisoners of war must be released once hostilities end. President Bush declared that al Qaeda terrorists weren’t traditional POWs - soldiers who could be relied upon not to attack the United States once their country ceases the hostilities of war.
Please read our comment policy before commenting.