Musadeq Sadeq/AP

International Offers to Accept Prisoners Could Aid Obama in Closing Gitmo

December 29, 2008 11:29 AM
by Christopher Coats
Hampered by logistical and legal questions, Obama’s long-held plans to close the controversial Guantanamo Bay prison may be helped along by offers from the EU and Australia to accept prisoners.

Overcoming Legal Hurdles

Amid reports that the incoming administration is already considering which Bush-era laws and policies to roll back or reverse in the days following his Jan. 20 inauguration, President-elect Barack Obama’s policy on the future of Guantanamo Bay has emerged as one of the most controversial and legally challenging.

The Cuba-based detainment center has become a focal point of international criticism for allegations of detainee abuse and an inadequate legal system for prisoners, and has been a symbol of the debate over what constitutes torture and a violation of human rights.

However, recent remarks by EU officials and Australian Prime Minister Julia Gillard signal a new willingness to participate in the closure of the camp by accepting prisioners that would otherwise be sent to the United States for trial, raising a host of legal concerns.

Insisting that each prisoner would be considered on a case-by-case basis, Gillard's shift could help the incoming administration overcome one of the largest hurdles to moving the remaining prisoners away from the controversial prison.

Since opening in 2002, the military center has held a total of about 750 prisoners, many captured during military campaigns in Afghanistan and Iraq. The facility currently holds 255 prisoners, including 50 that have already been found "not guilty" but have been unable to be repatriated for fear of persecution.

A staple of both campaigns during the presidential election, the closure of Guantanamo Bay has received widespread international support, especially among human rights groups who banded together to issue an appeal to Obama to take action immediately after taking office.

Yet while the intent exists, what has remained unclear is how the new administration could proceed and what would become of the prisoners still awaiting trial, or those deemed too dangerous to release.

Background: Questions of how and where?

The challenges facing the Obama administration, should it choose to pursue a closure, center on two main obstacles—what kind of system of trials should the prisoners face and where should they be relocated to once the facility is closed.

These challenges appeared so great that after reviewing a Supreme Court ruling that said all remaining prisoners had the right to habeas corpus appeals, President George W. Bush stated that although he would like to close the prison, there was no way to do so now or any time soon.

Currently, the trial system at Guantanamo requires prisoners to face Combatant Status Review Tribunals—the source of the lack of legal representation of detainees and the camp’s secrecy.

While not complete, early reports about Obama’s plan would send some prisoners back to their country of origin and require open trials of the prisoners in the United States.

Reports have also included the creation of a possible “terrorism court” to try the remaining detainees, though details of what this would constitute remain unclear.

According to CBS legal analyst Andrew Cohen, these courts would “bring them here to the States and prosecute them in semi-secret terror-law courts, overseen by civilian judges with FISA-like terror-law backgrounds.”

Critics and members of the Bush administration have pointed to the new legal rights possibly awarded to the prisoners, should they be held on U.S. soil, as the largest challenge and deterrent to closing the facility.

Meanwhile, supporters of the closure have expressed doubts about the creation of an entirely new legal system for detainees, arguing that the Guantanamo system has proven that a new legal framework is no substitute for what already exists.

“I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,” Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, told the Associated Press. “The last eight years are a testament to the problems of trying to create new systems.”

Further, the question of where the detainees could be held and tried has made Guantanamo’s closure all the more complicated. In addition to opposition to relocation from within the United States, with members of Congress voicing their strong displeasure with plans to move detainees to their respective states, some prisoners face the challenge of having no country to which they may return home.

Notably, a number of Uighur prisoners, members of a predominantly Muslim ethnicity in the west of China, have been found not to be a threat, but have appealed not to return to China for fear of persecution. They were captured in Afghanistan in 2001 while living there as refugees. Few countries have opened their borders to the Uighurs for fear of souring ties with China, however, leaving the United States to house them.

Opinion & Analysis: Support far from universal

Although Obama’s plans to close the facility have attracted support from many national and international observers, including Gen. Colin Powell, it has been far from universal.

Former legal advisor at Guantanamo Kyndra Miller Rotunda used the pages of the Washington Times to express her strong belief that the detention system must stay open, citing the presence of human rights observers and its safe distance from the United States as reason enough not to shutter the facility.

Key Player: Prof. Laurence Tribe

One of the most influential figures in Obama’s plans for what awaits Guantanamo detainees is Harvard Constitutional Law Professor Laurence Tribe. A one-time professor of Obama's in law school, Tribe has become one of the leading architects of Obama’s legal approach to enemy combatants. Charlie Rose hosted a discussion between Tribe and Berkeley Professor John Yoo, one of the leading legal voices in the Bush administration’s handling of enemy detainees.

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