Guantanamo's Waning Days

By JOANNE MARINER

Monday, Jun. 19, 2006

Just when it seemed that international condemnation of the U.S. detention facility at Guantanamo could not be any stronger, three detainees held there were found dead in their cells. The triple suicide - an "act of asymmetrical warfare" in the words of the camp commander - spurred additional calls for the camp's closure.

Within days, the European Parliament had voted overwhelmingly in favor of a motion calling on the United States to shut down the facility. A host of European leaders echoed the request, and the issue promises to be in the spotlight at a European-U.S. summit this week.

Asked point-blank at a recent news conference, "Why shouldn't Guantanamo be closed now?," President Bush indicated that he too would like to shut down the camp. Acknowledging that Guantanamo has damaged America's image overseas, he suggested that the facility leads some to conclude that the United States does not respect the values it pretends to espouse.

No one - even the camp's relative defenders -- would at this point call Guantanamo a success. A failed experiment, it exists out of inertia, not out of interest. The open questions posed now are when will it close, and how.

Of Frying Pans and Fires

Some 460 people are still detained at Guantanamo: Afghans, Yemenis, Saudis, Algerians, Jordanians, and many others. While Guantanamo's closure would be tremendously important in symbolic terms - as a rejection of indefinite, lawless detention - for these detainees, it would offer hope that they will see their families for the first time in years.

For many detainees, Guantanamo's closure would mean that they would either be criminally prosecuted or released. President Bush and other U.S. officials have already indicated that some sizeable proportion of current Guantanamo detainees will be sent back to their home countries. Most countries that have received detainees so far have released them, though a few detainees have been put on trial, and a smaller number - including some sent to Saudi Arabia - have been held in detention without charge.

One of the most difficult questions is what to do with those detainees who reasonably fear torture or other abuse in the country to which they would be returned. Perhaps surprisingly - though less so if one considers their treatment at Guantanamo - many detainees from notoriously abusive countries still prefer to return home.

The Saudi detainees, for example, are said to overwhelming desire a return to Saudi Arabia. They may expect some months of arbitrary detention, or even the possibility of physical abuse, but after years at Guantanamo, they are willing to risk it. While international standards forbid a country to return someone where he is likely to be tortured, if a detainee decides not to raise the claim then it may never be assessed.

The frying-pan-and-fire problem is obvious. Keep a detainee at Guantanamo long enough, and he might be willing to go anywhere. It raises clear concerns when the desire to escape one abusive situation leads someone "voluntarily" to opt for a different one.

Libyans, Uighurs and Others who Cannot Return Home

Still, while many Yemenis, Saudis, Afghans, etc., are eager to go home, a minority of detainees - perhaps a very small minority - strenuously oppose any return. For this group, which includes the Uighurs (a Muslim ethnicity in China) and a number of Libyans, the odds of serious abuse are just too high.

What to do with these detainees is one of the pending questions of the day. Manfred Nowak, the U.N. expert on torture, has called on European countries to help bear the burden of accepting such released detainees.

"It is not enough to criticize," he said on German public radio the other day. "Criticism means you have to be constructive."

Nowak believes Europeans should exert pressure on the U.S. to close the camp, but such pressure will only be meaningful when paired with a European willingness to offer help.

Albania, which recently accepted five Chinese Uighurs, might be viewed as a model for this approach, except that its willingness to take in the Uighurs seemed not to reflect any concern for Guantanamo, but rather a simple concern for furthering U.S.-Albanian relations. (And Albania, unfortunately, offers little hope for the ex-detainees' integration.)

Another Abu Ghraib

Like Abu Ghraib, Guantanamo is now an internationally-known symbol of American disregard for basic rights. Closing it - while ensuring that released detainees do not suffer continued abuse -- will be an important step toward salvaging America's reputation as a country of laws.


Joanne Mariner is a New York-based human rights attorney. Her previous columns on Guantanamo, Abu Ghraib, and the "war on terror" may be found in the FindLaw archive.

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