Barack Obama will face complex legal and political challenges as he closes Guantanamo Bay. Though his efforts to win international co-operation have already begun to yield some success, the legal ramifications of the situation are likely to dog the administration for years to come.
By Lisa Aronsson, Head, Transatlantic Programme, RUSI
Barack Obama made it clear throughout his campaign that closing down the detention facility at the Guantanamo Bay Naval Base in Cuba would be one of his top priorities. It was one of his most explicit commitments, and there is no question that he will deliver on it. There are rumours in Washington that he will make an Executive Order to close the facility as early as Wednesday 21 January. He has warned, however, that the process will be ‘difficult’ and that it will ‘take some time.’
Experts have been ruminating about the legal challenges of closing the facility. The outgoing administration warned the new president to think through the Bush administration’s policies carefully. At the end of 2008, there were approximately 255 prisoners in the facility. Intelligence sources claim that ‘dozens’ had ‘connections’ with top Al-Qa’ida leaders and knowledge or active involvement in plans to commit future atrocities. The administration will have to examine each case to determine who to charge, who to release, who to send home and what to do with the rest.
Some cannot be returned to their home countries because they are unlikely to receive a fair trial; others will fight against being deported to other countries. Complex transfer arrangements will have to be negotiated between the US and other countries for these detainees, and they will require monitoring after the transfer. Moreover, there are no obvious legal reasons to keep them in a country against their wishes. For those who are, theoretically at least, charged with a crime, the use of secret evidence and ‘enhanced’ interrogation techniques means that much of the evidence is already tainted; it is hard to believe that courts in any Western country would convict on this basis. Since an acquittal at the end of a court procedure in which the prosecution’s evidence is torn to pieces is worse than not holding a trial, the number of those who may be formally charged and placed in the dock is likely to remain very small indeed.
In addition to these legal issues, the new president faces a complex political challenge. Guantanamo has come to be seen as a potent symbol of the Bush administration’s policies on torture and indefinite detention. It has been a stain on America’s foreign relations and a major public relations disaster: American diplomats regularly complained that Guantanamo was a millstone around their necks.
The challenge for President Obama is twofold. First, he must improve America’s reputation in the world without appearing to be soft on Al-Qa’ida. Second, he needs to ensure that he does not open himself up to another public relations disaster by releasing detainees who might pose renewed threats to US security in the future. It is not beyond the realm of possibilities that some former prisoners might begin legal proceedings against the United States for wrongful imprisonment, while others might sign book contracts with publishers hawking accounts of their ‘period in hell’. Lucrative Hollywood deals are not far behind.
Despite frequent meetings with legal and human rights experts, the Obama administration has not released details of its future policies towards detention and interrogation. Nevertheless, the broad outlines of Obama’s strategy are beginning to take shape. Obama sees the current approach as ineffective, and has argued that the existing system – either through civilian or military courts – should be strong enough to handle even the most sensitive of terror suspects’ trials.
Obama’s team will try detainees in federal courts while promoting an international diplomatic effort to transfer as many detainees as possible to other countries. It should come as no surprise that, given Obama’s background, his team wishes to take advantage of existing legal tools. This, in their opinion, marks a symbolic return to what they see as the traditional values underpinning the American legal system.
The new administration’s diplomatic efforts have already begun to yield some success. While only Albania answered President Bush’s call to take in released detainees, Obama has already secured co-operation from a number of European countries including Portugal, France, Germany and Switzerland. There is an understanding in Europe that this is an important moment to help the new President resolve a situation not of his own making, preventing him from getting bogged down in a legal quagmire. It seems likely that the Guantanamo base will be closed without too many unpleasant surprises. But the legal ramifications of this episode are likely to dog the administration for years to come: they cannot be wished away in a single Executive Order.
The views expressed above are the author's own, and do not necessarily reflect those of RUSI.