President Barack Obama was courageous to issue an executive order closing Guantanamo within 12 months.
Having litigated on behalf of Guantanamo detainees for the past five years, I am delighted that this ugly symbol of the cruelty of the George W. Bush years is being shut down.
But while closing Guantanamo 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 85 detainees now held at Guantanamo 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”? There is no doubt that there are dangerous men at Guantanamo. Yet only 21 have been charged with crimes. The United States should not hold the rest in preventive detention. They should be put on trial in our criminal courts. It is vital that the 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 almost unlimited 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-Qaida 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 or hand al-Qaida a propaganda victory. If they are convicted, let them get old and die in jail, like mass murderers here at home.
Fourth, will the system change – or only the addresses? Many high-value detainees have been held not in Guantanamo but in Afghanistan or in secret CIA prisons with even less of a semblance of due process. The Obama administration must make clear that, once out of an active war zone, prisoners under the control of the United States will be given appropriate process and will be free from torture and coercive interrogation.
It will be a great day when the gates at Guantanamo slam shut for the final time.
But we need to close not only Guantanamo, but also the entire parallel legal world that is anathema to American values and the rule of law.
Obama has made an excellent start.
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