Thursday, December 18, 2014


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Closing Guantanamo Was Easy Compared To What Comes Next

How can the inmates at Guantanamo be tried, and where can they be released?
How can the inmates at Guantanamo be tried, and where can they be released?
By Heather Maher
WASHINGTON -- U.S. President Barack Obama's executive order to close the controversial detention center for terror suspects at Guantanamo Bay opens up questions that even White House officials acknowledge are "very complex [and] very detailed."

Among them: What to do with detainees who can't be tried in U.S. courts, either because evidence against them was obtained by torture or because intelligence is too sensitive to use in court? Should some interrogation methods remain secret to keep Al- Qaeda from training to resist them? And how can the United States make sure prisoners released to other countries won't be tortured?

Under Obama's executive orders, a task force will study the question of where the remaining 245 detainees at Guantanamo should go when the center closes and what kind of court system should prosecute them. There has been a long-running debate in the United States about whether the detainees should receive the same legal rights as U.S. citizens.

House Republicans have already introduced legislation to prevent Guantanamo detainees from being released or transferred to detention facilities within the United States.

Senator Kit Bond (Republican, Missouri) has emerged as one of the most outspoken opponents of closing the facility, and this week said, "I don't know of any city that would be thrilled to have Khalid Sheikh Muhammad or Abu Zubaydah living down the street," referring to the two high-level Al-Qaeda operatives being held at the center.

Questions Of Evidence

Sarah Mendelson, a scholar at the Center for Strategic and International Studies, led a study of options for closing Guantanamo that was published in a report in September and given to members of Obama's transition team after he won the election. She said the report strongly urged that the review board find ways to either release, or prosecute, all the remaining detainees.

"What I have advocated in the report that there ought to be two main categories: those that can be released or transferred, and those that can be prosecuted. The executive order does leave open the possibility that there could be this other category, of not release and not prosecute," Mendelson says.

"I hope that the Obama administration, and President Obama himself, urges the review panel to do absolutely everything they can to put people into the first two categories."

Legal experts say the complicating factors are that some of the "confessions" of detainees were obtained through torture, and other detainees were picked up based on hearsay, meaning someone told U.S. or coalition forces that the person was a terrorist suspect.

Both types of cases would be inadmissible under U.S. judicial standards, says Sarah Cleveland, a noted international human rights expert and professor of law at New York's Columbia University. She says neither circumstance is a legal basis to keep a detainee locked up.

"With respect to someone for whom the basis of their detention is information extracted by torture, I don't think it is any more legitimate to detain someone on that basis than to criminally prosecute someone on that basis," Cleveland says. "And I just don't think you can hold someone if the only basis for holding them is evidence extracted by torture."

European Help?

For those detainees who can be released, the question of where they will go will likely be answered through a process of diplomacy.

Some Guantanamo inmates would face torture if sent to their home countries.
At a January 26 meeting of EU foreign ministers in Brussels, the issue of whether European countries are willing to absorb some of the released detainees will be discussed.

For years, European governments have called for the camp to be closed, and now the pressure is on them to help the Obama administration resolve the issue.

On January 24, Germany's "Der Spiegel" reported that France had floated a proposal for EU countries to offer homes to about 60 inmates who are deemed innocent but who would risk persecution or torture if sent to their home countries.

The report said the French plan proposes that every EU member should decide itself whether it wants to take in refugees from Guantanamo and how many, and advocated that non-EU states such as Norway and Switzerland should also be contacted.

Finding A Court

For those detainees who can be tried, the question is what kind of court system should apply. The system of military commissions set up by former President George W. Bush was heavily criticized for its secrecy and lack of due process. Mendelson said some government prosecutors even retired rather than participate in what many considered a sham system of justice.

The Obama administration is aiming for a fresh start, with a complete review of every detainee's case. Although the military-commission system has for now only been suspended, Mendelson says she believes that administration officials would like most of the cases can be heard in federal criminal courts.

Part of the problem facing the review task force is the criteria by which the Bush administration picked up, held, charged, and even released the several hundred detainees who once lived at the facility. The extreme secrecy and atmosphere of heightened fear that characterized the facility's first few years of operation after its opening in 2001 may throw into question the details of some cases.

"Frankly, the whole system was discredited for holding people, for charging people, for trying people. The release process is also problematic. [The Bush administration] did release people to countries where they were subsequently tortured. The degree to which they had credible information on people is unclear," Mendelson says.

"So I'm sure that the review panel -- I think they're going to want to go back and look at what happened, and try and figure out if it's all true."

Worries Of Recidivism

As the ink was still drying on Obama's executive order to close the facility, "The New York Times" reported that a detainee who had been released in 2007 has become a chief operative for Al-Qaeda. Said Ali al-Shihri, who was released to Saudi Arabia, is suspected of involvement in a deadly bombing of the U.S. Embassy in Yemen in September.

The report brought into sharp focus the fears of some that among the remaining population of detainees are dangerous militants who will commit acts of terrorism once freed.

Mendelson points out, however, that more than 500 people were released from Guantanamo by the Bush administration, and the Defense Department figure of 61 who have "returned to the battlefield" includes some people who weren't fighters before they were picked up, and some who have become authors of anti-Western propaganda.

Still, there are critics who say a society cannot convert a national security challenge into a criminal justice issue, and argue that war does not always produce a clear-cut set of charges that will stand up in a court of law.

"We have not yet seen evidence of a person who is viewed as a serious security threat to the United States who cannot be criminally prosecuted. The Bush administration didn't attempt to do it," Columbia University's Cleveland says.

"And hundreds of the people whom the [Bush] administration claimed were the 'worst of the worst' ultimately have ended up being cleared for release or released, and the habeas lawyers who have reviewed the files of the remaining Guantanamo detainees say that many of them have profiles very similar to those who have already been cleared for release," she adds.

In its eight years of operation, Guantanamo Bay has come to symbolize the United States' lost moral compass -- how a country that for so many years led the world on human rights became a country that held people captive without charge and used torture to extract information.

Obama's decision to close the camp has been seen by many as the first step to restoring the United States' reputation, but Cleveland says the world is now watching to see how the fate of the remaining detainees is handled.

"The executive orders are very impressive and encouraging in their boldness, in their prominence, with the speed with which the administration moved to address the issue," she says. "But I think that the big questions are still to be determined."
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