Closing Guantanamo: Part 1

by hilzoy

From the AP:

"President-elect Barack Obama is preparing to issue an executive order his first week in office — and perhaps his first day — to close the U.S. military prison at Guantanamo Bay, according to two presidential transition team advisers. It's unlikely the detention facility at the Navy base in Cuba will be closed anytime soon. In an interview last weekend, Obama said it would be "a challenge" to close it even within the first 100 days of his administration.

But the order, which one adviser said could be issued as early as Jan. 20, would start the process of deciding what to do with the estimated 250 al-Qaida and Taliban suspects and potential witnesses who are being held there. Most have not been charged with a crime. (...)
Obama (...) acknowledged in an interview Sunday that the process of closing the prison would be harder and longer than initially thought.

"That's a challenge," Obama said on ABC's "This Week." "I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do.

"But I don't want to be ambiguous about this," he said. "We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution.""

This is wonderful news. However, a couple of points:

First, while closing Guantanamo matters a lot to perceptions of the US abroad, I think it's not the most important thing in terms of substance. What matters, as far as I'm concerned, is that the United States not detain people indefinitely without charges. It would be possible to close Guantanamo simply by moving the detainees who are there to some new prison, without substantially altering their legal situation. That would allow Obama to "close Guantanamo", but it would obviously not solve the underlying problem. Moreover, Guantanamo is not the only place where we are detaining people without any clear legal justification. (Since Bush started talking about closing Guantanamo, we've sent a number of people to Bagram.) 

We need to detain people only if they belong to some recognized legal category of, well, people who can be detained: prisoners of (non-metaphorical) war, people who have been indicted on concrete charges, people who have been convicted, etc. Anyone currently under detention who does not fit one of those categories should either be fit into one (e.g., by being charged with a crime) or released.

This brings me to my second point: figuring out how to do this for all the detainees at Guantanamo will require going through all their files and evaluating the evidence against them, in order to decide whether to charge or release each detainee. To do this for all the detainees might take over a hundred days, I think. (This wouldn't be true if the Obama administration could assume that the Bush administration had been doing a good job of this all along. However, they can't, so I'm assuming that they will essentially have to start from scratch.) What matters to me is that the Obama administration do this as fast as possible, not whether they do it in a hundred days.

The problem, of course, is that it's hard to know whether or not they are doing this as fast as possible. Shortly after the election, I wrote that liberals were going to be faced with the question how much to trust Obama. This is the sort of case I had in mind: when May rolls around, if some detainees are still in Guantanamo, we will need to decide whether we think that that's because the administration is dragging its feet, or because deciding what to do with some detainees is just difficult.

Luckily, the Obama administration can help us out here, by doing a couple of things that would clearly demonstrate good faith, and that the administration could do by fiat. First, it could suspend ongoing trials under the existing system of military commissions. That system is a joke. There is no reason to go on using it. 

Second, it could accept the Uighurs into the United States. The Uighur detainees at Guantanamo have been found not to be enemy combatants. They have never taken up arms against the United States. The Uighur community in DC is prepared to help them out, as are religious communities in DC and Tallahassee. A judge has ordered them to be released into this country. There is no earthly reason not to do so; after holding them for seven years, it's the least we can do. (In my opinion, we should also offer residence here to the five Uighurs in Albania.)

This would also be very helpful in persuading other countries to take detainees. Sometimes, there are reasons to think that a detainee who cannot go back to his country should be placed in a third country rather than here. But this is very unlikely to be true in all cases, and I would not for a moment blame any third country who wondered why it should be expected to accept detainees when we, who created this whole mess, are not. Starting off by immediately offering the Uighurs residence in the US would go a long way towards solving this problem.

In general, though, my main criterion for assessing the Obama administration's progress on this front after a hundred days or so will be how many detainees they have either released or charged. If Guantanamo is still "open" because there are, say, eight remaining detainees whose cases are particularly intractable, that will be one thing. If most of them are still there, that will be quite another. 

***

Note: despite what it says below, this post is by me, hilzoy, not Moe. For some reason, TypePad doesn't seem to consistently recognize it when I log out as Moe after deleting spam and log back in as me.This would, of course, bother me a lot less if Moe weren't an actual person, with views of his own. Sigh.

Comments

[hilzoy]

Grr. This is, of course, by me, not Moe. Will update immediately.

[KCinDC]

The periodic appearances of the fake Moe Lane are another thing we'll lose if ObWi moves.

[hilzoy]

KC: This one really annoys me. I mean, I was, in fact, signed in as me. And it's impossible to change authors. If Moe's views periodically appeared under my name, I'd be annoyed. I can't imagine he doesn't mind.

[hilzoy]

On the other hand, I posted my first comment without doing anything to ensure my hilzoy-hood. This is the first time the comments have gotten it right when the post gets it wrong, as opposed to the other way around.

[CharleyCarp]

There aren't files. No one believes this at first, and it takes a long time to accept it, but really, that's it: no files. There are databases that can be searched . . .

If what we're asking the new team to do is go through the data and figure out who was an AQ leader, this won't take much time at all. They've done factual returns (ie, an annotated narrative)for some 200 prisoners in the last four and a half months, and these narratives would include allegations like that if there is any evidence at all, no matter how specious. If instead you want the new folks to go through the returns (and responses) to define just exactly which species of small fry each of the 90% of guys is, then you're taking time.

[Nell]

Guantanamo is not the only place where we are detaining people without any clear legal justification.

That's putting it mildly.

We're holding how many prisoners at the two big prisons in Afghanistan -- 30,000? We continue to hold 15,000 in Iraq, on our say-so alone, for long and indefinite periods -- and since the beginning of this year, thanks to the "security" agreement, without even a legal figleaf. There are a hundred people whose whereabouts are unknown, suspected to have been whisked off at our behest.

So, yes. Closing Guantanamo, and trying the small number of prisoners for whome there's evidence of actual crimes in our courts, only begins to solve the problems our government has created with the bogus "war on terror."

And as long as Obama and his Secretary of State and the rest of his national security advisers and functionaries continue to operate within the fraudulent framework of a "war on terror", which they all do, the problems continue to multiply.

[OCSteve]

In general, though, my main criterion for assessing the Obama administration's progress on this front after a hundred days or so will be how many detainees they have either released or charged. If Guantanamo is still "open" because there are, say, eight remaining detainees whose cases are particularly intractable, that will be one thing. If most of them are still there, that will be quite another.

Agreed. I mean its fair to say that Bush has said for a couple of years now that he wanted to close Guantanamo… An immediate executive order that amounts to “start figuring out how to go about it” doesn’t seem to have much more weight IMO.

[liberal japonicus]

Did he say he wanted to close Guantanamo or did he say he'd like to, but the camp contains cold blooded killers? One is an expression of desire, another is an excuse as to why it can't be done.

[OCSteve]

Pretty subjective LJ. I don’t see much difference between that and “That's a challenge”. If it’s really desire vs. excuses he’ll have the power a week from now to say move anyone you have actually charged to another secure place and turn the rest loose – give them a plane ticket home or help them apply for asylum if they like. He can do that by lunchtime next Tuesday if he so desires. But its one thing to claim you’re going to do it on the campaign trail and another to face the reality of it. I don’t see any easy answers to the problem.

[CharleyCarp]

OCS, the whole problem, maybe. But there are a bunch of parts of the problem -- the vast bulk of it -- that aren't difficult at all.

(There's no reason to let GWB off any hooks at all, btw. In Hamdan, the Supreme Court told him that he doesn't have the authority he pretended to have, and also that the prisoners were covered by the GC. Dozens and dozens of men are today, right now, being held in conditions that violate the GC. This could have been remedied by the stroke of a pen, and none of the 'difficulties' oft identified prevented it. Instead, the President went for a different stroke -- signing the MCA -- which didn't bring him into compliance with the law, but simply deferred all accountability.)

[liberal japonicus]

If it’s really desire vs. excuses he’ll have the power a week from now to say move anyone you have actually charged to another secure place and turn the rest loose – give them a plane ticket home or help them apply for asylum if they like.

Bush had 2 years, I think you'll see something done by Obama within the first 6 months.

[OCSteve]

simply deferred all accountability

No argument.

[JadeGold]

OCS: why be disingenuous?

There's a world of difference between issuing an EO and saying "I'd like to do something."

When Obama signs that EO, he is setting in motion the entire apparatus of the Government to accomplish that task. It's not a symbolic gesture or lipservice.

[Quodlibet]

A substantial number of the prisoners now at Guantanamo will still be detained without charges somewhere in the world on Election Day 2012.

Bets?

[hilzoy]

CharleyCarp: "There aren't files. No one believes this at first, and it takes a long time to accept it, but really, that's it: no files."

*blinks*

Really? Wow. They never cease to amaze.

[Observer]

In support of CharleyCarp's post, from the WashPost:

A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay was so chaotic that it was impossible to prepare a fair and successful prosecution....

Vandeveld said in a phone interview that the "complete lack of organization" affected nearly all cases at Guantanamo Bay, Cuba. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors. "I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

Wouldn't it be nice if this were shocking?

[Gary Farber]

"In support of CharleyCarp's post"

I expect you haven't been reading here long enough to know that CharleyCarp is a longtime poster here, known to many of us, who has been flying down to Guantanamo to do pro bono work for several years.

The Washington Post piece is here, for whoever is interested.

[coffee]

Looks like Barack is off to a great start, on track to keep his word and restore some international credibility for the US