30 October 2009
Senate Vote Marks Next Step in Complex Effort to Close Guantánamo
Obama seeks to ensure due process as well as national security
Washington — Shortly after his inauguration, President Obama called for the closure of the detention facility at the Guantánamo Bay Naval Station in Cuba within a year, banned use of torture in interrogations, pledged adherence to the Geneva Conventions, and created a task force to develop a new policy for detainees.
“We uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe,” Obama declared in a May address. “Time and again, our values have been our best national security asset.”
Setting out the principles for a new Guantánamo policy has proven to be the easy part. Over the past nine months, the administration has had to move slowly in making legal determinations in each individual case.
CONGRESSIONAL CONCERNS
On October 20, the U.S. Senate marked a step forward in the process by voting to allow the government to transfer prisoners from Guantánamo to federal courts in the United States for prosecution. The legislation, already agreed to by the House of Representatives, now goes to the president for signature.
The new provisions require the administration to submit a comprehensive plan before further transfers take place and prohibit any resettlement of prisoners in the United States.
Not all agree that this is the right approach.
“It’s quite unhelpful for the legislature to be putting restrictions both on the bringing of detainees here for continued detention and on their transfer to other countries,” said Benjamin Wittes of the Brookings Institution, a public policy research group in Washington, and author of Law and the Long War: The Future of Justice in the Age of Terror.
Wittes said such actions may reflect concern in Congress about the administration’s specific plans for the detainees. They also may reflect pressure from constituents to resolve the Guantánamo issue.
COURTS AND DETAINEES
Earlier in the year, the U.S. Supreme Court ruled that foreign nationals sent to Guantánamo have the right to challenge their detention under habeas corpus. (Habeas corpus means they are entitled to a hearing where the government must justify their incarceration, although they would not have the automatic right to a full criminal trial afforded U.S. citizens.)
More recently, the Supreme Court has agreed to decide whether Guantánamo detainees can be ordered to be released in the United States if they are no longer a threat and have nowhere else to go. The case involves Chinese Muslims, or Uighurs, held at Guantánamo who were cleared of charges years ago but would be under threat of arrest if they were returned to China.
LOWER NUMBERS
The United States has made progress in reducing the number of Guantánamo detainees. Since October 2001, when the war in Afghanistan began, 775 terrorist suspects have been brought to Guantánamo. More than 400 have been released. Most were returned to their home countries.
Guantánamo held 245 detainees when the Obama administration took office in January; that number has dropped to just more than 220. Of those, 60 or so may face prosecution, while another 80 are awaiting release, according to news accounts.
“A bipartisan cross-section of distinguished Americans has called for the closure of the Guantánamo Bay detention facility, and has done so for a period of years,” said Jeh Johnson, general counsel for the Defense Department, in testimony before the U.S. Senate’s Judiciary Committee.
“The president imposed a deadline on us for closing Guantánamo Bay, and we remain committed to meeting the deadline, and we’re confident we’ll get the job done,” he said.
DETAINEES AND THE LEGAL PROCESS
In closing Guantánamo, the administration has established four categories of prisoners. Detainees who no longer pose a threat will be released. Those who have violated U.S. criminal laws will be tried in civilian federal courts, if feasible.
A third category, individuals who violated internationally recognized laws of war, will be tried before reformed military commissions that meet legal standards set by the Supreme Court for due process and defendants’ rights.
The Defense Department has announced a number of rule changes to improve the legal process involved in military commissions for this third category of Guantánamo prisoners, according to the Defense Department’s Johnson.
“We are confident that reformed military commissions can emerge as a fully legitimate forum — one that allows for the presentation of evidence gathered on the battlefield that cannot always be effectively presented in civilian courts,” Johnson said.
David Cole, a law professor at Georgetown University in Washington, rejected criticism of military commissions by some human rights groups as premature. Cole is author of Justice at War: The Men and Ideas that Shaped America’s “War on Terror.”
“If military commissions are indeed reformed to provide for fair trials, what is the objection to using them?” he asked in a news commentary. “Surely, the label is not what is important — due process is.”
There remains a final category of Guantánamo detainees who, because of tainted or coerced testimony, cannot be prosecuted but still pose a threat to the American people. Those individuals would continue to be detained under regular oversight and review by Congress and the Justice Department.
“Our goal is to construct a legitimate legal framework for Guantánamo detainees, not to avoid one,” President Obama said.
