Beyond Obama’s Order to Close Guantanamo

By signing an executive order last week directing the closure of the detention facility at Guantanamo Bay, President Obama brought the Bush Administration’s policies of unjust military commissions and indefinite detention to a screeching halt. He began to right the ship—to restore America’s moral leadership and to steer this nation back towards the principles upon which it was founded: justice, respect for human rights, and the rule of law. Nonetheless, two of the most important questions remain unanswered: where to try the prisoners who should be prosecuted, and what to do with the prisoners “whose disposition is not achieved” through transfer or prosecution.

President Obama’s order takes seriously the complexity of the challenge before him as well as the nature of the long-term terrorism threat.

The order requires that the Guantanamo detention facility be closed within one year. This firm deadline creates an immediate incentive to think through the most difficult problems, while allowing sufficient time to address them in a meaningful way. It also encourages the cooperation of our European allies who have been calling most loudly for Guantanamo to be closed.

The order further directs the Attorney General to coordinate individualized reviews, on a rolling basis, of the facts and circumstances surrounding each prisoner’s case to determine whether transfer or prosecution is appropriate. This review is critical. The Bush Administration’s pronouncements, made early and often, that Guantanamo prisoners were all dangerous terrorists were clearly untrue. Over the past seven years, nearly 800 prisoners were sent to Guantanamo. More than 500 of these men were eventually released with no untoward consequences. Dozens of others who remain imprisoned at the facility have been cleared for release. A fresh and detailed examination of each individual case will inevitably result in the release of dozens more.

And the order requires that those prisoners who remain at the detention facility temporarily are held under conditions that comply with Common Article 3 of the Geneva Conventions. This should inspire domestic and international confidence that the United States has re-dedicated itself to the humane treatment of prisoners in its custody. Until Guantanamo is closed, the burden of isolation experienced by the remaining prisoners can be eased by increasing access to family members through video- and tele-conferencing, improving access to counsel, and reducing the use of solitary confinement.

These elements of the order are a critical first step. But where should the prisoners who against whom there is sufficient evidence of criminal conduct be tried? And is it a good idea to consider “other dispositions?”

The answer to the first question is simple: The military commission system must be permanently dismantled, and the cases that qualify for prosecution should be tried in the regular federal courts. The military commissions have been an unmitigated disaster. In seven years, only two military commission trials have been held. The commissions lack domestic and international credibility, and any attempt to revise or revive them will inevitably fail.

President Obama has repeatedly stated a preference for using federal courts and with good reason. The federal criminal justice system is fully capable of handling complex terrorism cases. Since 9/11, more than 100 terrorism cases have been prosecuted in federal courts. It is true that some of these cases have posed difficult challenges, but these challenges have not stood in the way of successful prosecutions, nor have they prevented courts from protecting sensitive national security information or safeguarding important standards of fairness and due process.

The second question has sparked increasing and intense debate within academic circles.

Some scholars claim there is a group of men at Guantanamo—and at large in the world — who cannot be prosecuted but nevertheless pose a threat to our national security and must be detained. These scholars advocate the creation of a national security court: a special court that would provide fewer due process protections than ordinary criminal courts and might also be empowered to detain some suspects, potentially indefinitely, without criminal charge.

Proposals for this new system must be rejected.

Our procedural safeguards and evidentiary standards comprise the bedrock of American justice. Jettisoning them, even in a small number of cases, will undermine our system as a whole and perpetuate the damage to America’s reputation for fairness and transparency. Moreover, the disarray that plagued the military commission system—with abundant litigation and dissent within the military command structure—would be replicated in another separate and inferior system.

One of the most important lessons of the military commission experience is that creating a special court for terrorists is not smart counterterrorism strategy. Labeling Guantanamo prisoners as “combatants” in a “war on terror” ceded an important advantage to al Qaeda, bolstering their claims to be “warriors” engaged in a worldwide struggle against the United States. Coercive interrogations, prolonged detention without charge, and flawed military commissions only further fueled terrorism recruitment and impaired counterterrorism cooperation from our allies.

President Obama’s executive order is just the sort of bold action necessary to restore integrity to the American justice system and repair America’s reputation as a nation committed to human rights and the rule of law. But it is only the first step. More bold action will be required. President Obama, Congress and the American people must resist proposals for a new court system. Such a system would only amount to moving Guantanamo state-side.