My sense is that the examination over the one year period the president has set before closing the facility will underscore to the new administration the difficulties Professor Eric Posner noted would follow the shutdown of this albatross:
1. If some detainees are released or tried in civilian courts, many others will not be released because they are too dangerous, and will not receive regular civilian trials because of security issues. [Snip]
2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities — an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them.
3. The Obama administration will also not repudiate the proposition that the conflict with al-Qaeda and affiliates is a military conflict. It follows that the Obama administration will retain the right to detain members of al-Qaeda “for the duration of hostilities,” whatever that means, especially those scooped up outside the United States in war zones like Afghanistan.
4. It will continue to be necessary to detain al-Qaeda suspects without trying them for substantial periods of time, even if ultimately everyone will be tried or released. In some cases, it will take a long time to renegotiate repatriation agreements with countries of origin; in other cases, no country will accept them; in still other cases, military authorities will want to hold them while evidence is accumulated, hostilities are contained, or interrogations take place.
5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid — namely, that dangerous people imported from far away will have to be released onto American territory.
6. The foreign detention camps are dangerous, unpleasant places because they are located in dangerous, unpleasant areas. So shutting Guantanamo Bay will almost certainly increase the hardships both for future detainees and for the soldiers who must guard them — even if the Obama administration takes a softer line than the Bush administration and detains fewer people for less time, and tries a greater portion of them in civilian courts.
Of course, Obama may somehow be able to overcome problems the previous administration had on some of these points.
For one thing, liberal thinkers have begun their volte face:
Thus civil liberties lawyer David C. Cole, a longtime critic of the Bush administration, now admits that “you can’t be a purist” and issue a blanket ban on indefinite detention without trial. After all, there is nothing “un-American” about that — the system has long allowed for indefinite detention of, for example, the criminally insane without trial.
For another, faced with an international financial crisis and a population as enthralled and besotted with the new president as they were filled with bile at the old, other nations might agree to take some of these prisoners. The international goodwill to date seems to stop at the point of making any commitment to actually do anything — like sending troops to Afghanistan.
But who knows? Hope springs eternal, especially among those who love the notion of some grand transnational alliance against evil.
In the past, when Guantanamo prisoners were repatriated, some 35 of the released inmates found their way back to the battlefields. So we’d have to work to be sure the offers of newfound allies willing to help us had some substance. And then there was the case (at least one we know of) where a country repatriated prisoners promising not to abuse them, and then broke that promise — or so said the seven Russians who found themselves mistreated at home after begging not to be sent there from Guantanamo.
Seven Russian terrorism suspects were tortured and abused after they returned from U.S. detention at Guantanamo Bay, Human Rights Watch alleges.
The seven, arrested in and around Afghanistan shortly after the 2002 U.S.-led invasion and accused of fighting with the hardline Islamic Taliban regime, were repatriated with the guarantee that they would not be harmed.
The seven repeatedly asked authorities at Guantanamo not to return them to Russia, saying they feared for their safety if sent back.
Of course, so long as this abuse is done by others, especially those not allied with us, there is likely to be little outcry about it. And if all we want is a perception that the problem has been equitably dealt with, no one will care that the prisoners’ fate would be worsened.
Shipment of the prisoners overseas is likely, however, to be as well-received as shipping them from Guantanamo to the U.S. Senator Brownback has introduced legislation requiring the president to give 90-day notice to Congress before moving to close the prison. He doesn’t want the prisoners moved to Fort Leavenworth in his home state.
It’s hard to imagine many senators wanting the prisoners shifted to their home states either.
If this new initiative is not to be an exercise in fatuity or a symbolic move with no effect, we must hold the president to his word.
He will have to show that he can first and foremost do this without, in any way, diminishing national security. He says it won’t. We must hold him to it.
He will have to establish procedures that are fair and that are recognized as fair by civil libertarians and international opinion. Frankly, I find that civil libertarians and international opinion have been strikingly ill-informed and astonishingly cavalier about our national security, but then maybe it was really all political.
He will have to show that the support for this administration expressed in the international community is more than empty blather: Let’s see for example, how many of these prisoners Norway and Sweden and France offer to take, and what procedures are in place to assure the released detainees are not subject to the real abuse and torture they were spared while in Guantanamo.
I’ll take a wait and see attitude toward all this, but just as I am unwilling to prejudge this move by Obama as a failed bit of fluff, I am unwilling to agree that it is a solution before I actually see one.