Close it Right: Guantánamo Must Be Shut Down Quickly And Properly

(Originally posted on Huffington Post.)

On January 22, 2009, his second full day in office, President Obama issued an executive order mandating that the prison camp at Guantánamo Bay be closed within a year. Well, the clock’s ticking and it’s not looking good. As January 22, 2010 fast approaches, the administration is signaling that it's unlikely to meet its own deadline.

Guantánamo has become a symbol of American lawlessness and human rights violations, and it is highly disturbing that it is taking so long to shutter it. The prison should be closed now.

While the administration has encountered diplomatic problems regarding the transfer of detainees to other countries, the potential delay has also been due to business as usual in the nation’s capital. Even with Democrats in power, we’ve once again seen the tail wagging the dog, with a slow and weak response to fear-mongering about the unfounded dangers of transferring detainees to maximum security prisons in the U.S. — the “Not In My Backyard” cry from obstructionist cynics. In fact, a Democratic-led Congress has voted four times to prohibit the transfer of detainees to the U.S. except for prosecution, making diplomatic efforts to convince other countries to accept detainees that much more difficult. Our very own elected officials who should be advocating for justice have essentially and shamelessly been obstructing it.

Unfortunately, instead of continuing to passionately pursue the quick closure of Guantánamo, some members of the administration have played right into the obstructionism, sacrificing principle on the altar of political expediency. In fact, there are reports that White House counsel Greg Craig, who courageously led the charge for setting a closure deadline, has been criticized rather than supported for advancing the cause of American values. It is hard to know who started all this cynical maneuvering and who caved into it, but it’s time for the administration to regain its moral footing. That means reigniting its passion for ridding the world of Guantánamo as soon as humanly possible.

But whether or not the administration breaks its deadline for closure, it must not break its commitment to American values. As important as closing Guantánamo soon is closing it right. That means putting an end not only to the prison itself, but also to the unconstitutional and inhumane policies that have come to define it.

Approximately 775 individuals have been held at Guantánamo since it opened in 2002, only five percent of whom were captured by U.S. forces, according to a study by Seton Hall University School of Law. The great majority were captured by Pakistani or Northern Alliance forces, or turned in by bounty hunters for well-publicized rewards.

At least one detainee was as old as 98 when he was brought to Guantánamo; several were teenagers. ACLU client Mohammed Jawad was only 14 or 15 when he was brought to the prison, where he spent the next seven years of his life — essentially growing up there — before a judge ordered his release when the U.S. government was unable could produce any legitimate evidence to continue holding him. It has become clear over time that, contrary to the Bush administration's assertions, not all Guantánamo detainees were the "worst of the worst." The ACLU has just released a video featuring interviews with five men who lost years of their lives at Guantánamo without any meaningful opportunity to challenge their detention, only to be released without ever having been charged with a crime.

About 220 men remain at Guantánamo today, including 75 who have been approved for release by a presidential task force but remain in custody while the administration figures out what to do with them. The administration says it will announce the fate of at least some Guantánamo detainees by November 16.

It is vitally important that each remaining case be handled correctly and according to the rule of law. No one should be tried in the illegitimate military commissions, a second class system of justice that will never shed the shameful legacy of Guantánamo. Detainees against whom there is enough evidence of criminal activity should be charged and prosecuted in federal courts. (See a new ACLU video featuring family members of 9/11 victims calling for prosecutions in federal court.) Detainees against whom there is not adequate evidence should be repatriated to their home countries whenever possible, in accordance with international law. Finally, detainees who can't be returned to their home countries because they could be tortured there should be resettled in other countries — including the U.S. After 7 1/2 years, no Guantánamo detainee should be indefinitely detained without charge or trial. In fact, the Obama administration’s decision to continue its predecessor’s indefinite detention policy has also contributed to the delay in closing Guantánamo; if it were charging or transferring detainees to other countries as it should be, it could be a lot further along in the process.

It is true that the Supreme Court has held that prisoners captured while fighting against U.S. forces in Afghanistan can legally be detained until the "end of hostilities" under the laws of war. But the Obama administration has sought to expand that authority to include individuals picked up across the globe as part of a so-called "war on terror" — a war with no borders or any definable "end of hostilities." (See our new map that illustrates this borderless "war zone.") The laws of war do not contemplate indefinite detention in a conflict that takes place everywhere and forever. We already know that there are detainees being held indefinitely at Bagram Air Base in Afghanistan who were not picked up in that country or near any battlefield, but in locations around the world. Some of them were swept up with no evidence of a connection to terrorist activity and should be released; others are being detained for activities for which they can and should be prosecuted in criminal courts.

While the battle over whether detainees can be legitimately detained under the laws of war will be fought on a case-by-case basis in habeas proceedings in federal court, administration officials have stated publicly that there are dozens of prisoners who must be indefinitely detained without charge or trial because they are allegedly too dangerous to release but cannot be prosecuted in our legal system. This is a faulty premise. Our existing laws cover a wide range of terrorism-related acts, including assault and homicide, the use of weapons of mass destruction, harboring or concealing terrorists and, most far-reaching of all, “material support” laws. Moreover, our existing criminal justice system is more than capable of prosecuting terrorism suspects, having successfully prosecuted scores of terrorism suspects both before and after September 11.

Proponents of this faulty narrative often say evidence against some detainees might be too "tainted" to use in federal court. In plain speak, they mean evidence was garnered through torture or abuse. But the reason such evidence is rejected in our courtrooms is not only because it is obtained illegally and immorally, but also because it is inherently unreliable. If this evidence is too unreliable to be used in court, it is certainly too unreliable to justify imprisoning an individual indefinitely.

President Obama's promise to close Guantánamo was an important commitment that must be honored, and quickly. But it will be nothing more than a symbolic gesture if we continue its shameful policies elsewhere. We can't go back in time and stop the tragedy of Guantánamo from happening. We can, however, stop it from happening again.