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The Biden administration reiterated its aim, in February, to close the prison at Guantánamo Bay by the time President Joe Biden leaves office. Human rights advocates might be forgiven for their skepticism. President Barack Obama also promised to close the site in Cuba, and he significantly reduced the number of people held there, but Congress kept the prison open. Today, the facility detains 40 people; many of them are detained without charge or trial. Back in 2009, Eric Lewis warned In These Times readers that closing Gitmo was not enough — that if the United States wants to reaffirm the rule of law, it must ensure that all of its prisoners are given due process. The following is an excerpt from that story, exploring what was (and what remains) at stake. In 2009, Eric Lewis wrote:
To mark a true break from the policies of the [President George W.] Bush years, the Obama administration must resolve some lingering questions.
First, what will happen to [Gitmo] detainees who cannot be returned to their home countries?
There are about 65 to 85 detainees now held at Guantánamo who have been “cleared for release.” That is, they have been found not to have committed crimes and not to pose a threat of future danger. … As a first priority, the Obama administration should work with allies to get these men — some of whom have been incarcerated for nearly seven years — out of jail and resettled, and accept some of these detainees into the United States.
Second, what will happen to the detainees who cannot be charged with crimes but have been viewed as “too dangerous to release”?
No doubt there are dangerous men at Guantánamo. Yet only 21 have been charged with crimes. The Pentagon is holding the rest — about 70 to 80 detainees — in preventive detention, which means a special court may have to consider whether they should be held. But a preventive detention court is fundamentally incompatible with our criminal justice system, which adjudicates the culpability of past acts rather than predictions of future dangerousness. These men should be put on trial in our criminal courts.
…[President Barack Obama] should end these military commissions, which fail to provide the basic rights of our civilian or traditional military justice system. It is also vital that steps are taken to assure that evidence has not been obtained by torture, and that the defendants have the right to confront evidence against them and to have access to exculpatory evidence that the criminal justice system provides.
… [Last],will the system change or only the [prison location]?
… The Obama administration must make clear that, once out of an active war zone, prisoners under U.S. control will be given appropriate process and held at sites where the conditions of captivity are humane and transparent. … [I]t is important that detainees are not brought en masse to Afghanistan or other places where the government will argue that detainees lack fundamental rights because they are in a war zone or outside U.S. sovereignty.
What is critical is not only the end of Guantánamo, the place and the symbol, but also Guantánamo as a parallel legal world that is anathema to American values and the rule of law. Many of the 245 men who remain are now marking their seventh year in captivity. The closure should be done carefully but quickly. …
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