JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that not only should the incoming Obama administration close the US military prison at Guantanamo Bay, it should close down the stigmatized military base as a whole, coverting it into a joint US-Cuban scientific station to monitor and study climate change…
Candidate Obama pledged, if elected, to shut down the military detention facility at Guantanamo Bay, Cuba. He was elected president on November 5. Now what? Detainees should be removed and tried by regular military courts or an international criminal tribunal in Afghanistan and the base should converted into a scientific research center to combat climate change — a field in which President-elect Obama wants America to lead.
The Bush Administration maintains that “Gitmo,” as it is known, is a necessary evil. Suspected terrorists held there are too dangerous to release and cannot be tried before open courts in the U.S. because sensitive intelligence would be irreparably compromised. Thus, the combination of indefinite detention and the prospect of trial before military tribunals deficient in due process perpetuates itself. So long as Gitmo remains a “legal black hole,” America remains unable to return to a leadership position on human rights and the rule of the law in the world.
President-elect Obama realizes this and understands that the war of hearts and minds that has been missing in the Bush Administration’s global war on terror cannot be successfully waged with Gitmo as part of the equation. Consequently, the question becomes first, what to do with the detainees, and second, what to do with the base and the stigma that has attached to it.
Of the 700 detainees who found their way to Gitmo, 255 remain incarcerated there. The government wants to repatriate 60, but their home countries either won’t take them or will mistreat them upon return. That leaves 195 detainees who are potentially dangerous and potentially triable for violating the laws of war. The discrepancy between the large numbers who came through Gitmo and those who remain as “threats” is revelatory of the way many got there in the first place: bounty hunters turn people over to U.S. forces as terrorists or Taliban regardless of whether the allegations are true.
Assuming something can be done with the 60 non-threatening detainees, what should become of the other 195? Trial in federal courts is unlikely because the government would not be able to meet the high evidentiary requirements. When detainees were sent to Gitmo, building a case against them was not the government’s chief interest. It was collecting actionable intelligence — even if it had to be extracted by torture. Cases against the remaining detainees have not been and cannot be developed sufficiently to withstand scrutiny in federal courts and evidence extracted by torture is inadmissible. Moreover, even under the Classified Information Procedures Act, the government is loath to risk releasing classified intelligence in court.
Trial before regularly constituted military courts under the Uniform Code of Military Justice is much more likely. Indeed, relocation of the detainees to the military detention center at Ft. Leavenworth, Kansas has been suggested as a realistic alternative. The U.S. Supreme Court chastised the Bush Administration for not living up to its commitments under the Geneva Conventions and UCMJ in its Gitmo operations. Traditional courts-martial, while offering less evidentiary and more secrecy protections, are considered fair and constitutional.
International trial options are another, more remote possibility. But trial before the new International Criminal Court would require altering its underlying treaty and adding terrorism as a crime (which has yet even to be defined internationally). Trial before a new international tribunal in Afghanistan would present a better alternative. This would require U.N. backing to garner maximum legitimacy and include hybrid features that draw upon not only a blend of Islamic and international criminal law, procedures and protections, but also a blend of Afghan and Islamic as well as international jurists.
Either way, once Gitmo is depopulated, what becomes of the base? The stigma attached to Gitmo is insurmountable if it is maintained as a military base. The shadow of what went on there is too long and the steady drumbeat of condemnation from the world community too loud. In fact, Gitmo was little used by the U.S. Navy until its conversion into a detention camp for non-POW’s in 2002. The U.S. has held a perpetual lease on Gitmo since Cuban independence. Under a 1934 treaty, this lease can only be terminated upon abandonment by the U.S. or by mutual agreement.
Mutual agreement is exactly what should happen now. The U.S. should close down the military base. Then, as a first step in thawing relations between Washington and Havana, a jointly governed scientific station should be installed to monitor and study climate change. The port at Gitmo is perfect for scientific research vessels and the airfield could be used for weather planes.
The Intergovernmental Panel on Climate Change is the authoritative scientific body that tracks global warming, but it conducts no research. The IPCC is based in Switzerland and has working groups scattered in the Netherlands, Japan, Britain, and the U.S. Synthesizing fragmentary research from governments and universities is how the IPCC fashions its reports on the climate. A newly focused effort located in the tropics at Gitmo, generously funded with windfall taxes on the oil giants and subsidies strong-armed from OPEC, could attract the best climate scientists to generate the most comprehensive research on global warming for the IPCC.
Not only would the negative stigma attached to Gitmo fade away, the new facility would become a front line to combat climate change. A side benefit would be the beginning of talks between Cuba and the U.S. — frozen since 1959. Where that would lead is anyone’s guess, but it certainly would be better than the frozen relationship that currently exists. Perhaps even the embargo could be lifted? The Bush Administration would have loved to send Al Gore down to Gitmo. Now is the time for the Obama Administration to do just that.
Michael J. Kelly is Professor of Law at Creighton University in Omaha, Nebraska, Chair-elect 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).
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