Rumors of Gitmo’s Demise

by Deborah Pearlstein

Turns out rumors of a new Obama Administration-developed security court may have been greatly exaggerated – or at least premature. The blogosphere was briefly abuzz yesterday after an AP wire story in the morning reported that some of the Guantanamo detainees “might have to go before a new court designed especially to handle sensitive national security cases, according to [unnamed] advisers and Democrats involved” in talks with the Obama transition. In particular, “[a]ccording to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate.”

By last evening, CNN was quoting an actually named transition adviser who had a rather different take. According to senior adviser Denis McDonough, no decisions had been made about what to do with the remaining Guantanamo inmates when the base is closed, and moreover “there is no process in place to make that decision until [President-Elect Obama’s] national security and legal teams are assembled.”

McDonough’s position is not only obviously right, it’s far more likely true. The resolution of the cases remaining at Guantanamo is as fraught an endeavor as any, sensibly resolved only with the input of an interagency-type team including at a minimum the Departments of Defense and Justice, CIA and State. It also seems like the kind of judgment that one wouldn’t want to make without having actually reviewed the full factual record the government has assembled on the individuals who remain – a record that still has been only partly made public. It’d be one heck of a transition team that had managed to make time in the first week to review all 250+ cases from Gitmo on the (classified and unclassified) facts.

A whole lot of folks are understandably – and rightly – keen to see Gitmo resolved ASAP. But as someone (could be the president-elect) once said with respect to Iraq – we need to be as careful getting out as we were careless getting in. There are a few things, including a clear statement of purpose, that can happen right away. For the rest, we’ll have to wait at a minimum til after January 20.

http://opiniojuris.org/2008/11/11/rumors-of-gitmos-demise/

5 Responses

  1. I agree — what’s important now is to do what’s right, and to do it the right way, by an orderly deliberate process.

  2. Agreeing completely with the post, I would only add an explanation why this is such a complicated issue. The fundamental mistake creating Guantanamo was to assume that everyone in it fell in a single category of “unlawful enemy combatant”. Over time we have learned that there are dozens of different detainee stories. 

    Arabs (Hamdi and many others) who joined the Afghan army created by the Taliban and served as one of the 45,000 front line troops fighting the Northern Alliance. They committed no crime, had nothing to do with terrorism. The only basis to hold them was and is as POWs. 

    The Bosnians (Boumediene) who may or may not have planned to blow up the US Embassy. They were arrested by the police of a neutral nation and have to be either tried as criminals or released.

    The Ughirs who came for military training to be used against the Chinese. We have an international treaty obligation to ensure that while within our control they do not use that training to plan or execute attacks on China.

    Civilian employees of the enemy army, some of whom (Hamdan) participated in combat. While the Taliban army had units who conducted unlawful attacks, declaring the entire army to be a terrorist enterprise will effectively stip American soldiers of protection under Geneva III in any future war.

    Civilian minors who killed Americans (Khadr). It turns out he cannot be charged with simple murder under the MCA and that is really the only crime he committed. He could be charged with murder in a civilian court, but then he was a minor.

    Actual participants in the 9/11 attack (KSM, bin al Shibh, al Baluchi, al Harsawi). Are they soldiers who committed war crimes and can only be charged in a military court, or civilian terrorists who could be charged in an Article III court?

    Guantanamo could/should have been many different facilities:

    A POW camp for those who were soldiers in the Afghan army.

    A military prison for enemy soldiers convicted of violations of the laws of war.

    A Civilian Internment camp for those who worked for and with the enemy but who were not actual enlisted soldiers (held for security threats as provided in the Fourth Geneva Convention and Army Regulation 190-8.

    A civilian prision for those convicted of crimes either by military or civilian courts (depending on a resolution of jurisdiction).

    An Immigration detention center for those who are free to leave but have no country willing to accept them.

    Under international law, you cannot mix soldiers and civilians in the same facility, or mix EPW or CI detainees with convicted criminals. It may be legal to mix Civilian Internees detained for security reasons with civilians held pending deportation/repatriation, but it is probably still a bad idea. So Gitmo should have had at least separate buildings for each category, and any replacement for Gitmo has the same problem.

    Today a new administration would simply be compounding the original error to imagine that there is any one solution to “the Guantanamo problem”. While it is very late to do a proper sorting, the solution is not to throw everyone into one new different category and continue to ignore the Geneva Conventions.

  3. The solution to Guantanamo is simple in concept: obey the law.

    What’s complicated are the ugly facts of the Bush administration, especially their crimes and subversion.

  4. GC’s aside, I can’t help but feel that closing the base won’t be the silver bullet that most believe it will be and will most likely kick off the largest and most complicated class action civil law suit the world has ever seen. 

  5. Respectfully, Prof. Pearlstein, I feel it is necessary to point out that, at least in my opinion, Mr. McDonough’s statement didn’t actually contradict the earlier AP story. I agree with you that his statement is most likely accurate, for all the reasons that you cite, but it could also be accurate that while they won’t be making a final decision, nor do they even have any plans to do so, until after a thorough review of all the relevant information by the right people, they have still been brainstorming the issue, and this is one of the potential ideas that has been getting the most favorable reaction.

    In my experience, people speaking off the record tend to be more candid than people speaking on the record about back-room deliberations, and I could very easily envision a scenario in which a team of advisers came up with an idea that they thought the President-elect would probably accept (if not getting his favorable opinion outright), some of them mentioned this to the press, and then someone else from the campaign went on the record to clarify that no final decision was being made. I don’t see the two as mutually exclusive, and I think that we might have been given an advance screening of an impending controversy that we would be unwise to completely ignore (however, I do concur with your assessment that the astute reader will take these claims with a decent modicum of salt).

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