Shane T. McCoy/AP

EU Warms to Taking Gitmo Detainees

January 27, 2009 12:02 PM
by findingDulcinea Staff
After weeks of speculation, EU officials signaled their willingness to accept prisoners from the Guantanamo Bay detention center, though not without preconditions. The camp is scheduled to close within the year.

Not Without Conditions

Following several back and forth exchanges about the feasibility of such a transfer, representatives said they would accept those detainees who are not able to return to their country of origin due to questions of human rights or acceptance.

Hailing from countries such as Saudi Arabia, Chad, China and Yemen, these 60 detainees have been designated as non-threatening, but face persecution, imprisonment or violence should they return home.

The countries accepting the detainees would also want to conduct reviews to ensure they would not be allowing a terrorist in, requiring a visit from legal and security experts and interviews with each prospective candidate.

While almost certainly providing political coverage for Obama, who now faces questions about where Guantanamo prisoners will go after the detention center closes, the EU announcement does not guarantee a happy ending for all prisoners.

Bloomberg reports that even those detainees who have returned to their own countries have found it difficult to readjust to regular life and even harder to find work or opportunities when people know about their past. 

The EU's announcement comes three weeks after Australian officials told reporters that the country had refused two requests to settle a group of Guantamo Bay detainees there. The requests were being examined on a case-by-case basis.

“Assessing those requests from a case-by-case basis, they had not met our stringent national security and immigration criteria and have been rejected,” Julia Gillard said, according to Reuters.

Australia’s opposition party, along with many citizens, were displeased with the government for thinking about accepting any detainees, Reuters said.

Background: Trying to close Gitmo

A controversial issue long before President Obama announced he would close the detainee center, the future of Guantanamo Bay has emerged as one of the most leagally challenging obstacles the new administration has had to face.

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 signaled 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.

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 administration has said it would close the center within the year, what has remained unclear is how they could proceed and what would become of the prisoners still awaiting trial, or those deemed too dangerous to release.

Analysis: Questions of how and where

The challenges facing the Obama administration center on two main obstacles—what kind of system of trials the prisoners should 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 countries 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, CBS News reported.

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: 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, that support 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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