Closing Guantanamo: Part 1

As Steve mentioned earlier, the AP reports that Obama will order Guantanamo closed shortly after taking office. This is wonderful news. However, as Steve also noted, this doesn’t mean that Guantanamo will be closed immediately. A couple of points about this:

First, while closing Guantanamo matters a lot to perceptions of the US abroad, I think it’s not the most important thing in terms of substance. What matters, as far as I’m concerned, is that the United States not detain people indefinitely without charges. It would be possible to close Guantanamo simply by moving the detainees who are there to some new prison, without substantially altering their legal situation. That would allow Obama to “close Guantanamo”, but it would obviously not solve the underlying problem. Moreover, Guantanamo is not the only place where we are detaining people without any clear legal justification. (Since Bush started talking about closing Guantanamo, we’ve sent a number of people to Bagram.)

We need to detain people only if they belong to some recognized legal category of, well, people who can be detained: prisoners of (non-metaphorical) war, people who have been indicted on concrete charges, people who have been convicted, etc. Anyone currently under detention who does not fit one of those categories should either be fit into one (e.g., by being charged with a crime) or released.

This brings me to my second point: figuring out how to do this for all the detainees at Guantanamo will require going through all their files and evaluating the evidence against them, in order to decide whether to charge or release each detainee. To do this for all the detainees might take over a hundred days, I think. (This wouldn’t be true if the Obama administration could assume that the Bush administration had been doing a good job of this all along. However, they can’t, so I’m assuming that they will essentially have to start from scratch.) What matters to me is that the Obama administration do this as fast as possible, not whether they do it in a hundred days.

The problem, of course, is that it’s hard to know whether or not they are doing this as fast as possible. Shortly after the election, I wrote that liberals were going to be faced with the question how much to trust Obama. This is the sort of case I had in mind: when May rolls around, if some detainees are still in Guantanamo, we will need to decide whether we think that that’s because the administration is dragging its feet, or because deciding what to do with some detainees is just difficult.

Luckily, the Obama administration can help us out here, by doing a couple of things that would clearly demonstrate good faith, and that the administration could do by fiat. First, it could suspend ongoing trials under the existing system of military commissions. That system is a joke. There is no reason to go on using it.

Second, it could accept the Uighurs into the United States. The Uighur detainees at Guantanamo have been found not to be enemy combatants. They have never taken up arms against the United States. The Uighur community in DC is prepared to help them out, as are religious communities in DC and Tallahassee. A judge has ordered them to be released into this country. There is no earthly reason not to do so; after holding them for seven years, it’s the least we can do. (In my opinion, we should also offer residence here to the five Uighurs in Albania.)

This would also be very helpful in persuading other countries to take detainees. Sometimes, there are reasons to think that a detainee who cannot go back to his country should be placed in a third country rather than here. But this is very unlikely to be true in all cases, and I would not for a moment blame any third country who wondered why it should be expected to accept detainees when we, who created this whole mess, are not. Starting off by immediately offering the Uighurs residence in the US would go a long way towards solving this problem.

In general, though, my main criterion for assessing the Obama administration’s progress on this front after a hundred days or so will be how many detainees they have either released or charged. If Guantanamo is still “open” because there are, say, eight remaining detainees whose cases are particularly intractable, that will be one thing. If most of them are still there, that will be quite another.

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