Indefinite Detention Center

by Joseph Landau | November 13, 2008

The Associated Press reported Monday that advisors to President-Elect Barack Obama “are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials.” This likely signals a major policy shift in the detention and trial of “enemy combatants” at Guantanamo Bay. But the AP’s conclusion that the proposal “would make good on [Obama’s] promise to close the Guantanamo Bay prison” is premature. Shutting down Guantanamo won’t be so easy.

Obama’s reported plan applies only to the minority of detainees at the base who face domestic criminal charges--roughly 80 of the 255 men currently held at Guantanamo, according to Bush Administration figures. The U.S. has brought charges against roughly 20 of these 80 men and has completed only two full trials by military commission. Obama has rejected these commissions, and his transition team is reportedly considering using standard criminal trials for some defendants, and a new, special “national security” court for others.

In other words, seven years after 9/11, there’s little agreement on how the U.S. should try "enemy combatants," delaying the ability to close Guantanamo down. Some conservatives argue that civilian courts are too protective of detainee rights or would sacrifice sensitive national security information; civil libertarians reject national-security courts for insufficiently guarding defendants’ rights. Many of the detainees’ lawyers doubt that their clients’ cases will wind up in the civilian courts. According to Lieutenant Commander Brian Mizer, a member of the Judge Advocate General Corps and defense counsel to two detainees, “The coercive interrogation techniques that have been used, that in many cases have amounted to torture, is going to make prosecuting these defendants very difficult in any traditional court martial or federal court.” The military commissions also authorize trials for crimes like providing “material support” to a foreign terrorist organization, which, unlike the use of lethal force against U.S. personnel, was not actually a crime prior to 9/11. Consequently, Mizer concludes that “the vast majority of detainees at Guantanamo Bay could not be prosecuted in state or federal court, or through military courts martial because they have not committed any crime that existed at the time it was committed.”

Even if the Obama camp can resolve the difficult question of how to try criminal defendants accused of terrorism, it will still have to figure out a solution for the approximately 175 detainees who are unlikely to face any domestic charges at all. Of these 175, more than 100 are considered by the Bush administration to be potentially dangerous (though not dangerous enough to try by military commission). They can’t simply be returned to their own countries: The U.S. has requested that their native countries monitor them or try them under the criminal laws there. But those negotiations aren’t going well. For example, the U.S. and Yemen have been involved in long-standing discussions to return the roughly 100 Yemeni detainees--about 40 percent of Guantanamo's population--on the condition that they be charged, imprisoned, or closely monitored upon their return to Yemen. But no agreement has been reached. According to David H. Remes, a Washington, D.C. attorney who represents 16 Yemenis at Guantanamo, “The U.S. is fearful of returning men that it regards as terrorists to a country that seems unable to control terrorism within its borders. Of course, whether the U.S. is right to regard the men as terrorists is another question.”

In addition, around 60 detainees who have essentially been cleared of all terror charges remain at Guantanamo because they, too, cannot be returned to their home countries. The United States will not send a detainee to a country where he risks persecution or torture; the Convention Against Torture, which the U.S. signed onto in 1988, prohibits it. The United States has at times sought diplomatic assurances from human-rights-abusing countries that they will not mistreat detainees upon return. But even where such assurances are obtained, advocates for the detainees reject them as hollow promises. The most famous example, as chronicled by Human Rights Watch, occurred when Tunisian authorities abused two former Guantanamo detainees sent home in June 2007 even though Tunisia pledged that it would treat them humanely.

This leaves the U.S. in the position of finding alternate countries--ideally, allies overseas--to resettle those who would be harmed in their native countries. But many of our allies, including European nations whose leaders issued vociferous calls for the closing of Guantanamo, are uninterested in taking detainees. (Only Albania has accepted non-national Guantanamo detainees--it took eight in 2006 under an agreement whose terms have not been made public.)

This reluctance stems largely from the U.S.’s refusal to accept any detainees on its own soil. Consider the scramble that ensued last month when a federal district judge ordered that 17 Uighur detainees from China, all cleared of terrorism charges, be released into the United States. The Justice Department immediately petitioned the U.S. Court of Appeals for the D.C. Circuit to block the order, describing these men in public filings as “a danger to the public”--a claim that, according to The New York Times, hobbled the State Department’s efforts to persuade other countries to take the detainees. (The appeals court complied, blocking the order at least until late November.)

Indeed, many other Guantanamo experts believe that our allies won’t accept Guantanamo detainees--even those cleared of all terror charges--as long as the U.S. refuses to do the same. Emi MacLean, a staff attorney at the Center for Constitutional Rights, which is coordinating the federal litigation on behalf of Guantanamo detainees, said, “What we hear from European governments is they are willing to help the United States as long as there’s a demonstration that the U.S. is willing to pick up some of the pieces. The U.S. has to do its part as well.”

But advocating for the transfer of Guantanamo detainees to American prisons is politically dangerous. When John McCain announced early in his campaign that he wanted to transfer terror suspects to a maximum-security military prison in Fort Leavenworth, Kansas, the plan drew fierce opposition from his Republican colleagues in the Senate. As one Democratic congressional aide told The Wall Street Journal last week, “Can you imagine the political fallout if one of the first things Obama does is bring the Uighurs to the U.S.?”

Obama’s attempt to deal with the mess in Guantanamo is admirable, and stands in marked contrast to President Bush--whose remarkable lack of interest in resolving these issues was illustrated by his recent announcement that he is no longer considering Pentagon and State Department proposals on how to move men off the base. But a willingness to tackle the tough questions will only get Obama so far. Figuring out how to try defendants, while sending home those who’ve been cleared of charges, will require serious agility and will take serious time. Shuttering that part of our history won’t be as easy as one would have hoped.

Joseph Landau, a former New Republic assistant managing editor, is an attorney in New York and an Associate-in-Law at Columbia Law School.

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