Joanne Mariner

Advice to Obama on Closing Guantanamo

By JOANNE MARINER


Monday, Dec. 29, 2008

Last week, the heads of four prominent civil liberties and human rights organizations -- the American Civil Liberties Union (ACLU), Amnesty International USA, Human Rights First, and Human Rights Watch -- sent a strongly-worded letter to President-elect Barack Obama. The letter expressed the groups' views on how Obama should fulfill his pledge to close the prison camp at Guantanamo Bay.

The core message of the letter is clear: in closing Guantanamo, don't just move it on-shore. Rather than holding suspected terrorists indefinitely without charge or trial, the next administration should return to the country's established system of justice.

Set a Closure Date, Review Detainees' Files, and Prosecute Those Implicated in Crimes

The letter begins by criticizing the Bush administration's approach to detention. It explains that while the Geneva Conventions allow enemy soldiers to be held until the end of an international armed conflict, the Bush administration had stretched this wartime paradigm beyond recognition. What was new -- and altogether radical -- in the Bush administration's approach was the notion that the wartime detention model could be extended to cover something as amorphous as the "war on terror": a conflict that lacks a clearly defined enemy, geographical boundaries, or the prospect of ending anytime soon.

If a conflict exists everywhere and forever, the letter noted, empowering the government to detain combatants until the end of hostilities takes on a new and deeply disturbing meaning.

The letter then describes how the Obama administration should resolve the Guantanamo mess. First, when President Obama takes office, he should immediately set a date certain for closing Guantanamo. With this deadline in mind, the Justice Department should conduct a fresh review of all detainee records to determine which case files contain legitimate evidence of criminal activity.

Where such evidence does not exist, the detainees should be repatriated to their home countries for trial or release. If there is a risk of torture or abuse in their home countries, they should be transferred to third countries that will accept them or be admitted to the United States.

Where evidence of criminal activity does exist, detainees should be prosecuted in the traditional federal courts. Contrary to the views of proponents of detention without trial -- who argue that the existing courts can't handle terrorism prosecutions -- the U.S. justice system has a long history of handling terrorism cases successfully. The courts' time-tested procedures allow cases to go forward without compromising fundamental rights of defendants and without harming sensitive national security interests. In fact, a recent analysis of more than 100 terrorism cases -- conducted by two former federal prosecutors for Human Rights First -- found that "the justice system … continues to evolve to meet the challenge terrorism cases pose."

The letter points out that the U.S. federal courts have, in particular, proven that they can handle sensitive evidence. The Classified Information Procedures Act (CIPA) outlines a comprehensive set of procedures for federal criminal cases involving classified information. Applying CIPA over the years, courts have successfully balanced the need to protect national security information, including the sources and means of intelligence-gathering, with defendants' fair trial rights.

Another Unconstitutional System of Detention?

The letter recognizes that some commentators assert that the best way to deal with the toughest cases at Guantanamo would be to establish a system of preventive detention -- what the letter characterizes as another unconstitutional detention system. Adherents of this school of thought claim that some detainees are too dangerous to be released but cannot be successfully prosecuted. This claim is mostly based on the assumption that some detainees have committed crimes not covered by American law, that some cases rely on sensitive national security information that cannot be disclosed in open court, and that the evidence against some detainees would not be admissible in a regular court because it was coerced through torture or abuse.

But federal prosecutors have an imposing array of prosecutorial weapons at their disposal, including laws that criminalize conspiring or attempting to commit homicide, harboring or concealing terrorists, and providing "material support" to terrorist organizations. The government can secure a conviction for conspiracy by showing only an agreement to commit a crime against the United States and any overt act in furtherance of that agreement. If the government cannot meet that minimal burden of proof, it is difficult to see why it should continue to detain a suspect.

It is true that many of the statements obtained from detainees through abusive interrogation would not be admissible in a court of law. But the fact that the American justice system prohibits imprisonment on the basis of evidence tortured out of prisoners is one of its strengths, not a weakness; it's why we call it a "justice system" in the first place. Moreover, one would hope that if a prisoner were as guilty or dangerous as claimed, the government would be able to gather enough admissible evidence to prove its case from untainted sources, such as computers or cell phones that were seized, conversations that were intercepted, or physical surveillance that was conducted.

But most importantly, the letter explains, to create a whole new detention system and enact new legislation to accommodate the Bush administration's shameful torture policies would be a legal and moral catastrophe. Even the most unequivocal repudiation of torture would be hollow if Obama's administration were to construct another regime to hide its occurrence and evade its consequences.

Lessons of the Last Eight Years

The letter concludes by advising Obama to learn from the mistakes made over the last eight years. One thing that the military commissions debacle has shown is that it is not possible to create a new system of justice in the United States without enduring years of litigation and controversy. Any new national court system or preventive detention regime will be challenged, most likely all the way to the Supreme Court. In the meantime, there will be massive controversy and uncertainty about the fate of detainees caught up in it.

Rather than experiment with new and untested detention models, the incoming president should restore the central role of the federal courts and reaffirm the country's vigorous constitutional traditions.


Joanne Mariner is an attorney with Human Rights Watch's terrorism and counterterrorism program. Her previous articles on Guantanamo can be found in the FindLaw archives.



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