Currently, some argue that the Naval Base at Guantánamo Bay, Cuba, should be kept open indefinitely to house prisoners collected since 9/11 who are suspected terrorists. Using that premise, conservative talkshow commentators and United States Senators have strained credulity in recent weeks, and even FBI Director Robert Mueller has sounded a false alarm. Each point in the debate needs a counterpoint to demonstrate the naïvete of the let’s-keep-Guantánamo refrain, as there is no reason why President Barack Obama cannot close Guantánamo by January 22, 2010.
One foolish argument is that all 240 prisoners at Guantánamo are terrorists. The counterargument is that about 70 now at Guantánamo were cleared for release by the Bush administration, of whom the federal courts have ordered the release of 20, and 50 others are considered releasable by the Obama administration. Those most intimately familiar with the prisoners have long asserted that most are innocent and should never have been sent to Guantánamo in the first place. They have not been sent home because they might be roughed up or tortured upon arrival, as were the Russians formerly at Guantánamo who were beaten up at Moscow airport in 2004. Therefore, all 70 are technically refugees.
Among the refugees are 17 Uighurs, who have no quarrel with the United States. However, Senator Jim Webb argues that “they accepted training from al-Qaida, and, as a result they have taken part in terrorism.” Yet under the Bush administration, 6 Uighurs were transferred to Albania, where they have not taken part in terrorism, and at least one has left for Sweden. Originally dissidents in China, they were rounded up by bounty hunters in Afghanistan. Webb does not want them to join other Uighurs in Virginia, and he will doubtless get his way. (If released anywhere else in the United States mainland, they would get bus tickets to Virginia.) That leaves militarized Guam as a possible dropoff destination.
The Obama administration evidently has tentative commitments from European countries to host some of the 70 refugees now at Guantánamo, though they evidently want the United States to show good faith by hosting a few. Ireland’s prime minister has indicated an interest in hosting some of the refugees, and Britain will take one more. Belgium, Germany, and Portugal are also considering options, provided the United States follows suit. Malaysia and Yemen want their nationals sent home. Governments that facilitated extraordinary renditions may have a moral obligation to do so in order to expiate their crimes, but so does the United States. If no governments end up accepting the refugees, they might be assigned to the UN High Commissioner for Refugees in Geneva. Strangely, no negotiations between UNHCR and the Obama administration were initiated immediately after the decision to close Guantánamo.
Although fearmonger Senator Mitch McConnell, using a “Willy Horton” argument, predicts that “some of these murderers would return to the battlefield,” they are not all murderers. He cites an alleged recidivism rate among the 500 already released under the Bush administration far below that of Americans released from prisons for serious offenses, some of whom are tagged with GPS devices in a probationary period. Yet those now cleared for resettlement committed no offenses whatsoever. Even if some engage in terrorism after release, he denigrates the ability of American intelligence to track them down and rearrest them as well as the capability of the military to prevail in combat against them as if the United States were still in an unprepared pre-9/11 mode.
Among the 170 who have not been cleared for release, about 20 are now scheduled to be tried as terrorists in federal criminal courts, and an estimated 40 more are to be charged and put on trial in federal courts. They are likely to be convicted and sentenced to federal prisons. Indeed, one Guantánamo prisoner has just been transferred to New York to stand trial for his alleged role in the bombing of American embassies in Africa in 1998. Other terrorists have been tried in federal courts and are in federal penitentiaries today.
However, some members of Congress resist putting any Guantánamo prisoners on trial in civilian courts, and they do not want them in American prisons for fear they would mobilize existing prisoners to riot–or might escape. Yet, as Senator Lindsey Graham, points out, the United States successfully housed thousands of Germans (and ethnic Japanese in internment camps!) in American prisons during World War II. An obvious remedy to appease fearmongerers is for judges to order them placed in solitary confinement before trial without bail in such locations as the “supermax” prison in Colorado from which there has never been an escape. If they have killed someone, as Senator McConnell alleges, they might be sentenced to be executed under federal law.
Some of the remaining 110 prisoners at Guantánamo are suspected terrorists but are unlikely to be convicted because of tainted or insufficient evidence; judges are likely to dismiss their cases for those reasons. According to Obama, they “in effect, remain at war with the United States.” But that begs the question whether they are really terrorists. If the evidence is a confession extracted by illegal interrogation methods, they may be innocent. If there is insufficient evidence, they may also be innocent of wrongdoing. If they are truly dangerous, that can be determined at properly constituted military hearings. The UNHCR option remains for those who are not deemed probable terrorists. For those who are considered dangerous but could not be convicted, President Obama suggests three options.
One is to try them in revamped military commissions. A second option is to set up brand new “national security” courts. Since Congress may fail to authorize such tribunals, which in turn would be subject to endless legal challenges, and Guantánamo will be closed before the details can be worked out, they might ultimately be released by habeas corpus petitions, so both makeshift options are unworkable.
Obama’s third option is to invoke the law of warfare as grounds to retain them indefinitely in “prolonged detention.” If they are from Afghanistan, as is Mohammed Jawad (who was picked up at age 12), they could be sent to the prison at Bagram Air Force Base, which can properly hold combatants for the duration of that war. But most are from Yemen, a hotbed of terrorism, and the policy of prolonged detention may be found unconstitutional in federal courts. That is why several knowledgeable observers propose that they be tried quickly by military courts-martial. If found guilty, they can be placed in military brigs, as has already been the case for some American citizens accused of terrorist acts. If innocent, they could be turned over to the UNHCR for resettlement.
Congress was nonplussed when asked by President Obama to fund the closure of Guantánamo without a specific plan to deal with 240 prisoners. Rather than embarking on further delays by using military commissions or “national security courts,” the above suggestions could be the basis for such a plan to meet the January 22, 2010, deadline.
