JURIST Contributing Editor Michael Kelly of Creighton University School of Law says the pending closure of the Guantanamo Bay prison by executive order of new US President Barack Obama pointedly leaves open the politically and legally troubling question of what to do with all the detainees...
Most agree that many detainees pose no threat to the U.S. and whatever intelligence value they may have had is no longer useful. Consequently, release back to their home countries, or third countries if their home countries refuse to take them or would otherwise mistreat them, is the best option. And, as Obama notes in his order, "prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice."
Several European states, including Germany, France, Sweden, Ireland and Portugal have stepped forward to accept detainees who, if returned home, would face abuse or execution. Albania, one of the few Muslim states in Europe, has already accepted five Chinese Muslim Uighurs on humanitarian grounds. Failing repatriation to their home states or another state, release into the U.S. on some sort of immigrant status might be the only solution. Sixty of the detainees have already been cleared for release.
Of the detainees that do present a threat, trial is warranted and section 4 of the order undertakes to review those who can be tried. But how and under what conditions? The evidence against them, obtained by coercion or torture, would not stand up in U.S. federal courts. Such evidence is inadmissible. Nevertheless, Obama promises in his order to determine whether trial before Article III courts is feasible. The faulty Bush military commissions are not an option for political reasons - these will be shut down and the order halts any pending proceedings.
Regularly constituted military courts under the Uniform Code of Military Justice are an option, and the language of the order ostensibly provides enough wiggle room for this possibility, although it is not explicit. The U.S. Supreme Court in Boumediene chastised the Bush Administration for not adhering to statutory and treaty strictures in the Uniform Code of Military Justice and the Geneva Conventions with respect to its treatment of Gitmo detainees. Military prisons at Ft. Leavenworth (Kansas) and Camp Pendleton (California) would be likely venues for such military trials.
Establishing a new national security court within the U.S. judicial system has been championed by former Attorney General Mukasey, who as a U.S. District Court judge for the 2nd Circuit, tried the terrorists involved in the first World Trade Center bombings in 1993. There is significant resistance to such a move, however, from civil libertarians who worry that basic defense rights will be curtailed and secrecy will become a norm in prosecutions before such a panel. Again, there is nothing in the order on this and nothing about an international option either.
A hybrid Afghan/International criminal tribunal in Kabul is yet another possibility, although more remote. Establishing ad hoc international criminal tribunals involves United Nations Security Council backing and financing. The two ad hoc tribunals for Rwanda and the former Yugoslavia have dragged on for years and cost millions. The two hybrid tribunals (incorporating domestic and international legal experts and traditions) for Sierra Leonne and Cambodia have experienced political setbacks. While such tribunals have traditionally only prosecuted perpetrators of genocide, war crimes and crimes against humanity, the new Special Tribunal for Lebanon is a hybrid model and is set to break new ground by prosecuting perpetrators of terrorist acts.
With such an opening, a joint Afghan/International criminal tribunal could try the remaining Gitmo detainees who are non-releasable for violations of the laws of war and/or terrorist involvement. Of course the government of Hamdi Karzai would have to agree. And the question of which Muslim legal experts would participate is of paramount importance. Further involvement by the Muslim legal community in the process of international criminal law (which is sadly lacking) would certainly be a beneficial by-product of this venture.
As indicated by the new European states stepping up to take cleared detainees, the world may be ready to help President Obama with this tricky legal problem. He should graciously accept. In addition to emptying Gitmo, the new president would garner even further global good will by shutting down the Guantanamo military base altogether and converting it into, say, a first-class scientific research station for climate change. Together with leading the world beyond the Kyoto process and shoring up the science going to the Intergovernmental Panel on Climate Change, a base conversion of this sort carries a symbolic and real commitment of enormous import. Having Guantanamo's deep water port used by research vessels and its new airbase used by scientific planes would be a physical manifestation of America's disavowal of the worst aspects of its "war on terror" and a mark of its renewed dedication to international co-operation in an era of a new and potentially far more deadly threat - global warming.
Michael J. Kelly is Professor of Law at Creighton University in Omaha, Nebraska, Chair of the National Security Law Section of the American Association of Law Schools, and author most recently of Ghosts of Halabja: Saddam Hussein & the Kurdish Genocide (Praeger 2008).