Cleaning Up the Mess at Guantanamo
Cleaning Up the Mess at Guantanamo
Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress.
Today’s Washington Post report that the Obama administration is preparing an Executive Order on detention authority is a big step in the right direction. Of course some concerns remain about the emerging policy, but many of the specifics outlined in the story — especially criminal prosecutions for future off-battlefield detentions and recognition of the train wreck that would likely come from Congress — are very encouraging. It’s not perfect, but if the Obama administration follows this path, it would be a significant improvement over the Bush administration and would go a long way towards cleaning up the mess at Guantanamo.
After Congress’ pathetic performance during consideration of Guantanamo funding in the supplemental appropriations bill, it is now evident that no matter how well-intentioned the president and some responsible members are, Congress is not a reliable partner. Whatever would emerge from the sausage grinder risks being far worse than even the already unacceptable status quo. One likely outcome from Congress would be the creation of national security courts for suspected terrorists — an option Obama now appears to have rejected — which would build on the errors of the Bush experiment with military commissions and pollute the entire U.S. justice system.
It is important to recognize that President Obama is not avoiding Congressional authorization because Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances.
According to the Post, that is exactly what Obama is considering for any detainees captured in the future:
“Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan, and possibly in the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.”
This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example.
Serious concerns remain about the prospect of continued military detention for Guantanamo detainees captured outside zones of active combat. The Post reports Obama is considering holding some of these detainees in military detention with improved due process protections to ensure as fair a system as possible.
These legacy cases are by far the most challenging to resolve in any new legal framework because of Bush administration mistakes. The overwhelming majority of the 229 detainees remaining at Guantanamo were captured in Afghanistan or fleeing the battlefield along the border with Pakistan or in Pakistan proper. Only around 30 were seized in places like Thailand or Kenya, and most of those detainees are accused of high levels of terrorist activity that should make them excellent candidates for criminal prosecution.
Obama officials are concerned, however, that torture has tainted much of the evidence against some detainees and other information has been lost after years of mishandling by the Bush administration. Yet, if these detainees are who the government believes them to be, sufficient evidence should exist to obtain a conviction in federal court, even if it is not currently in possession of prosecutors. No evidentiary concerns exist on the most important legacy case, 9/11 mastermind Khalid Sheikh Mohammed, and fortunately Obama looks ready to bring criminal charges against him and the others accused of complicity in the 9/11 attacks.
The detention policy that President Obama inherited was a complete disaster. Unwinding the Gordian knot has proven an enormous challenge, but it looks now as if Obama is heading in the right direction. It is far from a done deal and the continued military detention of some Guantanamo detainees is troubling. But Obama appears to have rejected the two things that advocates for change most feared — a preservation of broad military detention authority for off-battlefield captures and the prospect that Congress could permanently enshrine in U.S. law a policy as bad or worse that Bush’s. The policy is not perfect but it is worthy of support as Obama tries to clean up the mess at Guantanamo.
6 Responses to “Cleaning Up the Mess at Guantanamo”
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It’s hard to know where to start with such a bizarre post.
This would be the most well known case of waterboarding which resulted in him confessing to a list of plots including a murder he simply did not commit.
If that’s the standard, and confessing to a murder you are known not to have committed while being tortured isn’t a problem, how could “evidenciary concerns” consist in any other case? Did someone else confess to killing JFK?
June 27th, 2009 at 7:06 pmThis may have been an excellent point at which to illustrate what form Obama has shown those considerations to take. Like arguing in court that Habeas Corpus rights do not apply to detainees at Baghram, regardless of the fact that this is a facility that holds prisoners captured in various countries and unrelated to any battlefield.
Although that would tend to be the complete opposite of this description.
June 27th, 2009 at 7:11 pmThe overwhelming majority of those 229 eh?
Well isn’t that just as meaningful as the number that are left handed.
You know what else is an overwhelming majority? The number of detainees killed in detention through brutal treatment that weren’t at Gitmo. In fact it’s not a majority, it’s all of them. And apparently fixing the mistakes of the Bush detention policies can be proposed and assessed without once mentioning any of these other facilities where the worst abuses have occurred and where most prisoners are currently held.
Yes, and when they ruled in Rasul vs Bush that Gitmo detainees had access to US courts, the DoD stopped sending prisoners there who were captured in such war zones. Making your point meaningful only for those who were fortunate enough to be sent to Gitmo beforehand. For the majority of detainees who were purposely kept out of that little legal problem…. well, I guess that’s a topic for another day when someone forces you to address that.
Seriously, is there no point prior to the day Gitmo is shut that anyone is going to acknowledge that Gitmo isn’t the primary facility where detainees are held? That prisoners have for 5 years been actively detoured to other facilities precisely to avoid the legal status Gitmo grants them that other facilities don’t.
It’s intellectually dishonest enough when talking generally about the issue, but to continue this Potemkin Village approach when assessing the President’s proposed solution to detainee policy, while not once even considering that this doesn’t apply to the majority of detainees? What kind of complicit nonsense is that?
And this from someone supposedly representing and “International Rights and Responsibility Program”?
June 27th, 2009 at 7:49 pmSo the question remains. Will Obama close Gitmo or not? He promised that he would. He promised he would do so in less than one year. Well, time is running out. His year will expire next January. Given how Obama has consistently broken one campaign pledge after another I simply don’t believe him. I think Gitmo will be open come this time in 2010. Based on what I am reading in this blog it sounds like you are prepared to let Obama off the hook should my prediction come true.
June 28th, 2009 at 5:10 pmWhat’s next for Gitmo?
June 28th, 2009 at 9:55 pmFind out at http://gitmotourism.blogspot.com
As illegal combatants they can be held where ever the U.S. wants to hold them until the terrorism war is finished with the U.S. capitualtion or the terrorist killed off. Nothing else makes sense. The Obama method seems to be send them to the civilian prisons – but – on what legal pretense?
June 29th, 2009 at 10:54 am