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Joanne Mariner

Unhappy Anniversary at Guantanamo


Monday, January 11, 2010

On January 11, 2002, the United States delivered the first 20 hooded and shackled detainees to the military detention facility at Guantanamo Bay, Cuba. Eight years later, the prison is still open, with nearly 200 prisoners remaining in custody.

Only about ten of these men have ever been charged with a crime, although some have been held by US forces since late 2001. Their long-term, indefinite detention without charge—a practice more typical of countries like Egypt and Syria than of western democracies—has undermined American standards of justice and cast doubt on the country's commitment to basic constitutional values.

President Obama made Guantanamo one of his signature issues when, on his second full day in office, he pledged to shut down the detention facility within a year. For several months now, it has been clear that this self-imposed deadline would not be met. But while the delay in closing Guantanamo is disappointing, the method by which it seems likely to close is worse.

For what the Obama administration is planning for Guantanamo is less to shut it down than to move the facility somewhere else. Like its predecessor, the current administration asserts the power to hold these prisoners indefinitely without charge in military custody. Like its predecessor, the current administration relies on claims of an ill-defined and open-ended war as a justification for its detention practices.

This may end up being the last year that detainees spend at Guantanamo. But no one should pretend that moving the men to the United States—or, more specifically, to the correctional facility in Thomson, Illinois, that the administration has announced plans to purchase—will do much to improve their situation. It may even serve to mainstream a detention policy that was, up to this point, viewed as exceptional.

"Prolonged" Detention

It was in a speech at the National Archives in May 2009 that President Obama first suggested that his administration might continue to hold some number of detainees indefinitely without charge. In describing the population held at Guantanamo, he outlined five categories of prisoners, including a set of persons "who cannot be prosecuted yet who pose a clear danger to the American people." He said his administration would work with Congress to develop a legal framework setting out the rules and procedures for the "prolonged" detention of such persons.

While Obama did not state categorically that this fifth category of detainee existed, his administration has since made clear that when Guantanamo closes, it will transfer some number of prisoners to the United States for continued, indefinite detention. While it has given up the idea of drafting legislation to govern such detentions, it may yet issue an executive order that outlines evidentiary rules and standards, periodic review procedures, and other relevant issues.

In the meantime, the pending habeas claims of prisoners at Guantanamo continue to be evaluated by the federal courts.

Yemeni Detainees

Yemeni detainees, who currently comprise nearly half of Guantanamo's population, pose a challenge to the goal of ending indefinite detention. Both the Bush administration and the Obama administration had long been wary about sending detainees home to Yemen, given the country's precarious security situation. Earlier this month, after Umar Farouk Abdulmutallab's apparent attempt to set off a bomb on a commercial jetliner, the Obama administration announced that it was entirely halting Yemeni returns. Abdulmutallab, a Nigerian, had recently spent time in Yemen, reportedly receiving training from terrorist operatives there.

Human rights organizations such as Human Rights Watch have called on the US to take steps to resettle the Yemeni detainees if the men cannot be safely repatriated. They have also urged the government to provide released detainees with assistance to help them successfully reintegrate into society, a step that would make them less vulnerable to recruitment by militant groups.

How Guantanamo Should Close

The Obama administration should commemorate Guantanamo's eighth anniversary by renewing its pledge to close the prison quickly. But far more important than the when of closure is the how.

To move detainees to US soil while continuing to hold them indefinitely without charge would take most of the meaning out of closing Guantanamo. Instead of setting up a new prison to become synonymous with injustice, the Obama administration should try a new tack. Prisoners implicated in crimes should be brought to trial, and the remainder should be sent home or resettled in other countries.

Joanne Mariner is a lawyer with Human Rights Watch. Her columns for FindLaw are available in FindLaw's archive.

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