By Elisa Massimino
Wednesday, November 19, 2008
As a presidential candidate, Barack Obama repeatedly vowed to close Guantánamo if elected. Now, as the countdown to inauguration day begins, people are asking how and when he'll make good on his pledge.
Some are urging Obama to close Guantánamo by executive order on his first day in office. But signing an executive order or announcing an intention to close the prison camp is just the first step. Nearly seven years have passed since the United States brought the first prisoners to Guantánamo, and the policies underlying the prison's existence are firmly embedded in law and executive pronouncement.
Closing Guantánamo will require more than the stroke of a pen. It will take comprehensive policy changes and a major investment of domestic and international political capital. But it can be done, and it can be done in the new administration's first year.
How it's done will be as important as when. One thing we have learned over the last seven years is that Guantánamo is more than just a place. It is a symbol of injustice, of expediency over fundamental fairness, and of the United States' willingness to set aside its core values and beliefs. If the prison is closed, but the policies pursued there persist in another venue on United States soil, then Guantánamo won't be closed; it will just be moved.
Closing Guantánamo requires a plan for what to do with the people being detained there. Nearly 800 men have been imprisoned at Guantánamo since 2002. The vast majority - about 520 - have been released without charge.
Approximately 255 prisoners remain. These fall into three groups: prisoners not suspected of any criminal activity; prisoners suspected of criminal activity in third countries; and prisoners suspected of having committed crimes against the United States.
The first group, those against whom we have no - or insufficient - evidence of a crime, should be released. The United States simply cannot afford to continue holding prisoners on an abstract belief or fear that they could be dangerous if released. The costs of continuing this policy are too great. Prolonged detention without charges at Guantánamo has harmed U.S. interests by undermining counterterrorism cooperation with our allies and fueling terrorist recruitment.
This plan will require the cooperation of our allies. To the extent Guantánamo has promoted terrorist recruitment, this is more than just a U.S. problem now. And our allies have a shared responsibility to help fix it. Gaining their cooperation may depend on our own willingness to resettle some Guantánamo prisoners on U.S. soil.
The Bush administration's early pronouncements that the men at Guantánamo were all the "worst of the worst" undoubtedly prejudiced our allies against the idea of resettling prisoners inside their own borders. Accepting a small number of prisoners into the United States would send an important message to our allies and establish the goodwill necessary for negotiating resettlement agreements in the year ahead.
Those prisoners suspected of having committed crimes in their home countries or in third countries should be transferred for prosecution in accordance with international fair trial standards.
We should assist third countries in their efforts to conduct just prosecutions by providing them with evidence we have gathered, including witness names and statements, interrogation reports and exculpatory information or leads.
And those prisoners suspected of having committed crimes against the United States - a small but high-profile group - should be transferred to U.S. soil and prosecuted in federal or military courts.
Some law professors say the answer to the Guantánamo conundrum lies in concocting yet another substitute system for detaining and trying terrorist suspects to replace the Guantánamo model of detention without trial and military commissions - a specialized court for terrorism cases.
But such a detour risks embroiling the new president in prolonged legal challenges that would obviate many of the advantages of closing Guantánamo and ending military commissions.
Most importantly, no new system has been proven necessary. As many federal prosecutors and judges can attest, the federal criminal justice system has proven itself highly adaptable in dealing with the challenges of complex terrorism cases.
The federal system is not perfect, and there is no doubt that some of these cases have strained the courts. But experienced judges and a broadly experienced bar have handled these challenges well, balancing the need to protect sensitive national security information with defendants' fair trial rights.
For nearly seven years, Guantánamo has been a trap, not just for the prisoners held there but for American moral authority and global leadership. We have had the keys to unlock it all along. It is up to President-elect Obama to use them.
Elisa Massimino is director of Human Rights First.