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Joanne Mariner

How to Close Guantánamo in Six Steps


Wednesday, Nov. 19, 2008

President-elect Barack Obama recently reiterated his campaign promise to close the military detention center at Guantánamo Bay. In an interview with "60 Minutes" broadcast on Sunday night-his first extended interview since the election-Obama declared: "I have said repeatedly that I intend to close Guantánamo, and I will follow through on that."

Obama's comments are a welcome affirmation of his commitment to turn the page on Bush Administration abuses. But shutting down Guantánamo will not be easy. Ending Guantánamo in any meaningful way means more than just moving the Guantánamo approach somewhere else. It means, instead, remedying the abuses that Guantánamo represents, finding a fair solution for the detainees who are currently held at Guantánamo, and introducing new, reformed approaches to fighting terrorism.

Some commentators have recommended what seems to be an easier fix: bringing the Guantánamo system of indefinite detention without charge to the United States. But such a "solution" would not solve the underlying problems at Guantanamo: it would simply move them here.

Guantánamo, the place, is shorthand for Guantánamo, the approach. It is an approach that consists of indefinite detention without charge, of unfair procedures, and allegations based on secret evidence. Bringing that approach to U.S. mainland would not remotely begin to remedy the mess that the Bush Administration is leaving behind.

There is a much better way to deal with the problem of Guantánamo. Human Rights Watch has long called for detainees at Guantánamo to be either tried or released. The following proposals lay out how to do so in a manner that protects both human rights and national security.

The Scope of the Problem

The United States continues to hold some 250 people in military detention at Guantánamo Bay, most of whom have now been in US custody for nearly seven years without charge. There is a growing bipartisan consensus that the continued operation of the detention facility at Guantanamo has not only caused significant damage to America's standing around the world, but has been counterproductive in fighting terrorism.

Only 17 detainees are currently facing charges before military commissions at Guantánamo, and only three others have been convicted by military commissions. (Two of the three are currently serving their sentences at Guantánamo; a third, Australian David Hicks, is now free, having served a short sentence in his home country.)

Six Steps to Close Guantánamo

Beginning on January 20, President-elect should take rapid steps to address the problem of Guantánamo, as outlined below:

  1. Immediately announce plans to close Guantánamo.
    Upon taking office, President Obama should announce his intention to close Guantanamo, lay out a plan for doing so, and set a date for final closure. Such an announcement will signal a clear break with the abusive policies and practices of the last seven years and help garner the international cooperation needed to make the goal of closure a reality.
  2. Review the detainees' files.
    The Obama Administration should establish an interagency task force (led by the Department of Justice, but with input from the Department of State, the Department of Defense, and the Director of National Intelligence) that is mandated to review the files of all detainees to decide which of them should be charged and brought to trial, and which should be released. The Bush Administration has long asserted that Guantanamo holds some number of detainees who are too dangerous to release, yet cannot be tried. But the evidence purportedly justifying these claims has been kept secret, even from the detainees against whom it has been used, making it difficult-if not impossible-to assess the strength of these claims in any given case. In the few cases in which courts have been able to examine the classified evidence in detainees' files, moreover, they have found it to be shockingly thin. The interagency task force that the Obama Administration should create should look at all the detainees' files with a fresh eye. Untainted by any need to back up the claim that detainees are the "worst of the worst," the task force should be able to assess which suspects are genuinely implicated in terrorist acts.
  3. Set up a process to ensure that detainees are not returned to torture or abuse.
    An estimated 30 to 50 detainees-from countries such as China, Algeria, Tunisia, and Libya-have expressed an unwillingness to return home due to fears of torture or abuse. The United States should set up a fair process before a federal court by which all detainees are provided advance notice and an opportunity to contest any planned transfer. Detainees found to have credible fears of abuse should not be returned to their home countries.
  4. Repatriate all detainees who are not slated for trial and can safely be returned home.
    The United States should move as quickly as possible to repatriate those detainees who will not be charged with a criminal offense and do not express a credible fear of return.
  5. Negotiate resettlement agreements with other countries, and accept some detainees for resettlement into the United States.
    The Obama Administration will need to work with US allies to find homes for the detainees who have been cleared for release but cannot be repatriated. As a first step, the United States should agree to resettle some number of detainees into the country. Without this step, it will be extremely difficult to convince other countries to help share the burden. Notably, Guantanamo still holds 17 Uighurs-Muslims from western China-most of whom have been cleared for release since 2004, yet cannot be returned to China because of fears that they would be tortured upon return. Uighur communities and refugee resettlement groups within the United States have committed to providing housing, language, and job training to all 17 Uighurs. They would be an easy group to quickly and safely resettle in the United States.
  6. Transfer the remaining detainees to federal custody for trial.
    Detainees charged with crimes should be transferred into the United States for trial before federal courts, before which more than 100 terrorism cases have been successfully prosecuted since September 11, 2001.

Joanne Mariner covers counterterrorism issues for Human Rights Watch. She directs interested readers to Human Rights Watch's new briefing paper, "Fighting Terrorism Fairly and Effectively: Recommendations for President-Elect Barack Obama."

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