Obama Prepares to Reverse His Guantanamo Promise

by Julian Ku

Unless something rather dramatic happens, the Obama Administration is going to give up on its self-imposed January 22, 2010 deadline for closing prison facilities at Guantanamo Bay. The Center for American Progress, a reliable barometer of the Administration’s thinking, has also advised against meeting the deadline.

As a legal matter, it is not obvious that closing Gitmo would have made much of a difference.  In fact, current conditions at Gitmo are almost certainly better than the average U.S. prison. And it seems likely that Gitmo detainees will get almost all the same legal rights that they would have if held in the U.S. and probably more than if they were held in Afghanistan.  While such detentions may violate international law, these detentions would equally be problematic in the U.S. or in Afghanistan.

So closing Gitmo was almost a purely symbolic act and it is really hard to figure out how to close it effectively.  Obama knew or should have known this when he signed the closure order.  But he obviously screwed up, which is why he has apparently fired the  architect of this deadline, White House Counsel Gregory Craig. I guess someone has to take the blame.

http://opiniojuris.org/2009/11/13/obama-prepares-to-reverse-his-guantanamo-promise/

4 Responses

  1. “losing Gitmo was almost a purely symbolic act”

    The preparation of closing Gitmo pressures the administration to find places to put these people and act on their cases.  They cannot continue to hold things in limbo.  This is far from “almost purely symbolic.”

    I put aside that symbolism is nothing to sneeze at in international relations. 

    “get almost all the same legal rights that they would have if held in the U.S.”

    Is this matched by what is happening now?  Also, Gitmo is isolated and out of mind.  In this respect, a U.S. prison is also not the same situation. 

    “almost certainly better than the average U.S. prison”

    In what sense?  What “average” are you talking about?  If they are moved to the U.S., would they also not get special treatment given their status?  What will they lose in the process?

  2. Agreed with Joe.  Your claim that “[i]n fact, current conditions at Gitmo are almost certainly better than the average U.S. prison” is a (reckless, baseless and irrelevant) argument masquerading as fact.  As is your claim that “it seems likely that Gitmo detainees will get almost all the same legal rights that they would have if held in the U.S.”  Really? Says who?  He-who-just-devised-a-multi-tiered-system-of-”justice”-depending-on-the-likelihood-of-conviction AG Holder?  Would that be the same AG who is denying a fair trial to a young Canadian who was 15 when he was captured 7 years ago? 

    In some ways, the red herrings in this blogpost remind me of your argument that the Arar decision was correctly decided because “the righs of aliens to invoke the Constitution against U.S. actions OVERSEAS has never received unqualified, or even qualified, support from the Supreme Court” (emphasis added) – http://www.abanet.org/natsecurity/nslr/2006/NSL_Report_2006_07.pdf

    Except, of course, that Arar was detained during a layover at JFK on his way home to Canada when US immigration officials detained him, interrogated him, and decided to send him off to be tortured in a Syrian prison. 

    Even though Arar was a non-admitted alien at the time of his alleged mistreatment by U.S. officials (forever “alleged” because the U.S. will not give him his day in court), at a minimum, your article should have mentioned that there is considerable authority for the proposition that he had certain Fifth Amendment due process rights because there are cases from various Circuits extending such rights to ”excludable” (i.e. legally not-admitted) aliens in custody of U.S. immigration officials.  But admitting this would have undermined your “slippery slope/let’s not open the floodgates” argument hinging on the idea that everyone captured anywhere outside the U.S. would suddenly claim constitutional rights…

    [Edited by KJH]

  3. If they are transfered to the Afghanistan- will they still be subject to US military tribunals or will have access to US courts to file petitions for writ of Habeas Corpus?

    Were these claims by President Obama made with the true hopes of closing Gitmo or simply to give hope that the right thing will be done by these detainees according to International law? Another issue is what will happen once the US no longer desires to detain them since most states do not want mass quantities of detainees suddenly immigrating across their borders. These are certainly some serious considerations for the current administration to deal with as they work to close the prison facilities.

  4. I agree with Meredith that a huge issue is what to do with the detainees who are no longer deemed a threat but would not be welcomed back by many states. That’s what concerns me the most because some of these detainees admittedly pose no threat to the US, and yet few states wants to accept them. It seems fundamentally unfair to me that people who will not prosecuted might be detained indefinitely simply because no state will have them. Will the US keep sending them incrementally to states that will accept them, as they have done with the Uhyghurs in Palua? Would the US be willing to accept them?

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