COMMENTARY: Don't close Gitmo

By Kyndra Miller Rotunda | Monday, June 23, 2008

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Presidential candidates Barack Obama and John McCain don't agree on much. But they have reached common ground on Guantanamo Bay. Both declare that, if elected, they will close Gitmo. But, what will the United States do with the 200-plus suspected terrorists held there? Neither candidate seems to have an answer to that important question.

The United States should follow the Geneva Conventions by keeping Gitmo open and holding detainees there until the end of the war. It isn't just what the law requires - it is the only answer that makes sense. Keeping them in Gitmo, where there is continuing international oversight, is best for the detainees and for the United States.

What are the options? Let them go? Move them to the battlefield - or worse - the United States?

I served in Guantanamo Bay as a legal adviser to the Detention Camp commander. I know, firsthand, that Guantanamo Bay is teeming with international human-rights activists, including the International Committee of the Red Cross, who have virtually unfettered access to the camp. ICRC delegates not only carry mail to and from detainees, they also make sure the United States complies with the Geneva Conventions.

But the ICRC observers aren't the only ones tromping through Gitmo. Every year hundreds of lawyers and journalists travel to Gitmo for an inside look at the detention camp. Furthermore, the United States has spent millions of dollars on its facilities in Guantanamo, Bay. Now, interrogations are broadcast on closed-circuit television. This open access and heavy foot traffic has a watch-dog effect, and helps ensure detainees are treated humanely. (There have been problems, notably in Abu Ghraib. But remember: That prison was in Iraq, and the people who abused the detainees were not U.S.-trained interrogators.)

If the United States moved detainees to Iraq or Afghanistan, all this foot-traffic (and the oversight it provides) would surely stop. What journalists, or U.S. lawyers, would - or could - trek across the globe and into harm's way to visit detainees on Iraq or Afghanistan battlefields?

What's more, detainees seem to like it Gitmo. One was offered release and decided to stay. Another liked it so much that he asked if his family could move in with him. Just ask the Uighurs (Chinese minority) terrorists. Last year the United States transferred a group of them from Gitmo to freedom in Albania, the only country in the world who would take them, other than China. We did not transfer them to the Chinese because we were concerned they would suffer torture there. After they spent time in Albania, they said they preferred Gitmo.

The worst thing the United States could do is bring detainees to the United States. Who wants a few hundred suspected terrorists living in their backyards? What if one escapes? And, how would the United States guard against suicide bombers trying to free their colleagues? A detention camp in the United States would be a magnet for all radical Islamists looking to martyr themselves and attack the United States - again - from the inside. It would put everyone involved in harm's way.

If the military transferred detainees to the United States, some detainees might claim asylum. Even if a court ultimately rejected such claims, we would face a lengthy litigation. Even if judge were reversed on appeal, the detainee might be released in the interim. What might happen then? Well, the United States now releases detainees from Gitmo when it concludes that they were improperly captured or no longer pose a danger.

Unsurprisingly, many detainees re-enter the fight. The United States has recaptured on the battlefield or killed in action about 5 percent to 10 percent of these detainees. And there are those who are not killed or recaptured but still fight against us. One appeared on the Internet after the United States released him, bragging about how he fooled Americans into releasing him. He was also a supporter of al Qaeda, he said, and the dumb Americans believed him when he said we captured him by mistake. The prosthetic limb that the United States issued to him in Gitmo was clearly visible in the footage.

The United States should keep Gitmo open, keep the foreign observers to make sure we treat the detainees humanely, and hold them there until the end of the war. That is what the Geneva Accords provide. When will this war end? When our combat soldiers come home from Afghanistan and Iraq. We don't know the exact date that will occur, but that is true of every war. No one knew, on Dec. 8, 1941, when World War II would end and who would end it.

Kyndra Miller Rotunda is the author of "Honor Bound, Inside the Guantanamo Trials" (Carolina Academic Press 2008). She is also a major in the U.S. Army JAG Corps Reserves and has served three tours in the global war on terror. In fall 2008, Maj. Rotunda will join the faculty of Chapman University School of Law in Anaheim, Calif., as a visiting assistant professor.

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