Political Realities of Closing Guatanamo Bay

By Joshua Reiman
Staff Writer
November 23, 2009

During his campaign for president, a tenant of Barack Obama’s populist message was the moral and legal injustice of indefinitely detaining terrorism suspects at Guantanamo Bay. Then-candidate Obama railed against the Bush administration’s legal justifications of torture and military commissions and the denial of habeas corpus rights. He claimed the practices were out-of-step with internationally recognized norms and contradicted American values and legal institutions.

To demonstrate his strong convictions concerning the former Guantanamo Bay detention policy, President Obama signed an executive order to close the facility within one year. Aside from this deadline (which Obama recently acknowledged would not be met), the larger concern is whether Obama will compromise some of the precepts he boldly affirmed during his campaign. He seems to have learned that it is easier to denounce Bush’s policies than to repair them.

Simply put, the realities involved with closing Guantanamo are incredibly complex. First, the prison has housed more than 800 terrorism detainees since early 2002. As of October 31, 2009, 215 detainees remained at the facility. Those still detained fall into one of three categories: those to be released, those to be tried, and those deemed too dangerous to release.

In June, Special Envoy Daniel Fried negotiated an agreement with the European Union, regulating the terms of transfer for detainees. Through this and other partnerships with allies around the world, 75 detainees will be transferred to third-party countries before Obama’s deadline.

Additionally, the Bush administration’s military commissions were slightly reformed as a part of the 2010 National Defense Authorization Act, allowing the Obama administration to justify their continued use. Nonetheless, these military trials are precisely what Obama voted against as a senator and forcefully repudiated as a presidential candidate. Moreover, the commissions have only convicted three detainees in 8 years.

On November 13th, defense officials announced that ten more detainees would be tried: five by military commissions and five by federal court. The justification given for using the commissions is that the crimes they are accused of relate to attacks against the U.S. military; therefore, they fall within the customary jurisdiction of that tribunal. But this rationale is not persuasive. It is clear the government believes that certain detainees are more likely to be convicted by the commissions where legal definitions are looser and the standards of evidence more relaxed. Why else would Obama continue to use a legal mechanism that he had complained before was “an enormous failure?”

The reform of the commissions this summer was largely cosmetic. The international community, as well as much of the American public, will see no difference between the Bush-era commissions and the Obama-era commissions.

Since the terrorist attacks of 2001, 195 prisoners have been convicted of international terrorism in U.S. courts, a fact that goes largely unnoticed by both the media and politicians. This shows the U.S. justice system remains the ideal venue for the prosecution of terrorists.

That said, cases brought to federal court will not be easy convictions. For some detainees, there may be insufficient evidence or some evidence may be inadmissible in court because it was acquired through torture.

“If Obama is going to shift U.S. counterterrorism policies concerning detention away from the damaging Bush approach,” writes Sarah Mendelson of the Center for Strategic and International Studies, “he and his team need to put to rest the radical notion that there are people who cannot be prosecuted but who are too dangerous to release.”

For this last category of detainees, the administration is trying to buy time until a plausible option is crafted. The government has considered domestic maximum-security prisons as a viable option, only to have this idea shot down by senators, representatives, and state politicians from both parties. Many of them have excited fear that holding detainees in their state would make their state less safe. Few have noted this line of argument also implies weakness about their own state’s ability to run their prison facilities.

Currently, the government is considering Thomson Correctional Center in Illinois to house the detainees. Both Illinois Governor Pat Quinn (D) and Senator Richard J. Durbin (D) support this proposal, arguing it would bring 3,000 new jobs to the surrounding communities.

Each of these scenarios presents challenges, but what to do with this last category of detainees has stumped even the experts. On one hand, the Obama administration must hold detainees they believe are too dangerous to release or those they may never be able to prosecute for lack of sufficient evidence. On the other hand, by indefinitely detaining them without trial, Obama runs afoul of the Constitution, which disapproves of detention without charge. To release them would be political suicide and expose him to accusations of being “soft” on security. Which ever he chooses, ultimately Obama must bear the risk and responsibility of a decision only the President of the United States can make.

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