President Obama was courageous to issue an executive order to close Guantánamo by next January. Having litigated on behalf of Guantánamo detainees for the last five years, I am delighted that this ugly symbol of the cruelty of the Bush years will be shut down. Its closing not only fulfills Obama’s promise to obey the rule of law at home, but also demonstrates to the world that the casual torture and humiliation of foreign Muslim men – in the illusory pursuit of safety – is over.
But while closing Guantánamo is a critical step, it is not an end in itself. To mark a true break from the policies of the Bush years, the Obama administration must resolve some lingering questions.
First, what will happen to the 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. Military officials now concede that many of these men were simply in the wrong place at the wrong time. 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.
Right now, Obama has asked for a 120-day suspension of all military commission trials. This is an important first step. He 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.
The statutes for conspiracy and material assistance to terrorism are quite broad. In the improbable event that these detainees are found not guilty and released, the United States has significant surveillance capacity worldwide to ascertain with a reasonable degree of certainty whether they are planning terrorist acts.
Third, will the government seek the death penalty?
The Bush administration sought the death penalty against Khalid Sheikh Muhammad and four other high-level al Qaeda figures. These detainees have said they want to be found guilty and want to be executed. In other words, they seek martyrdom. The Obama administration should not give them that satisfaction and hand al Qaeda a propaganda victory. If they are convicted, let them get old and die in prison, like criminals here at home.
Fourth, will the system change or only the addresses?
Most high value detainees have been held in Afghanistan or in secret CIA prisons that lack even the minimal transparency and process of Guantánamo. 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. Obama’s executive order barring coercive interrogation and forbidding “black site” prisons marks a sea change from the Bush legacy of secrecy and abuse. But it 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.
It will be a great day when the gates at Guantánamo slam shut for the final time.