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Tilting at Windmills

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January 12, 2009
By: Hilzoy

Closing Guantanamo: Part 1

As Steve mentioned earlier, the AP reports that Obama will order Guantanamo closed shortly after taking office. This is wonderful news. However, as Steve also noted, this doesn't mean that Guantanamo will be closed immediately. A couple of points about this:

First, while closing Guantanamo matters a lot to perceptions of the US abroad, I think it's not the most important thing in terms of substance. What matters, as far as I'm concerned, is that the United States not detain people indefinitely without charges. It would be possible to close Guantanamo simply by moving the detainees who are there to some new prison, without substantially altering their legal situation. That would allow Obama to "close Guantanamo", but it would obviously not solve the underlying problem. Moreover, Guantanamo is not the only place where we are detaining people without any clear legal justification. (Since Bush started talking about closing Guantanamo, we've sent a number of people to Bagram.)

We need to detain people only if they belong to some recognized legal category of, well, people who can be detained: prisoners of (non-metaphorical) war, people who have been indicted on concrete charges, people who have been convicted, etc. Anyone currently under detention who does not fit one of those categories should either be fit into one (e.g., by being charged with a crime) or released.

This brings me to my second point: figuring out how to do this for all the detainees at Guantanamo will require going through all their files and evaluating the evidence against them, in order to decide whether to charge or release each detainee. To do this for all the detainees might take over a hundred days, I think. (This wouldn't be true if the Obama administration could assume that the Bush administration had been doing a good job of this all along. However, they can't, so I'm assuming that they will essentially have to start from scratch.) What matters to me is that the Obama administration do this as fast as possible, not whether they do it in a hundred days.

The problem, of course, is that it's hard to know whether or not they are doing this as fast as possible. Shortly after the election, I wrote that liberals were going to be faced with the question how much to trust Obama. This is the sort of case I had in mind: when May rolls around, if some detainees are still in Guantanamo, we will need to decide whether we think that that's because the administration is dragging its feet, or because deciding what to do with some detainees is just difficult.

Luckily, the Obama administration can help us out here, by doing a couple of things that would clearly demonstrate good faith, and that the administration could do by fiat. First, it could suspend ongoing trials under the existing system of military commissions. That system is a joke. There is no reason to go on using it.

Second, it could accept the Uighurs into the United States. The Uighur detainees at Guantanamo have been found not to be enemy combatants. They have never taken up arms against the United States. The Uighur community in DC is prepared to help them out, as are religious communities in DC and Tallahassee. A judge has ordered them to be released into this country. There is no earthly reason not to do so; after holding them for seven years, it's the least we can do. (In my opinion, we should also offer residence here to the five Uighurs in Albania.)

This would also be very helpful in persuading other countries to take detainees. Sometimes, there are reasons to think that a detainee who cannot go back to his country should be placed in a third country rather than here. But this is very unlikely to be true in all cases, and I would not for a moment blame any third country who wondered why it should be expected to accept detainees when we, who created this whole mess, are not. Starting off by immediately offering the Uighurs residence in the US would go a long way towards solving this problem.

In general, though, my main criterion for assessing the Obama administration's progress on this front after a hundred days or so will be how many detainees they have either released or charged. If Guantanamo is still "open" because there are, say, eight remaining detainees whose cases are particularly intractable, that will be one thing. If most of them are still there, that will be quite another.

Hilzoy 9:47 PM Permalink | Trackbacks | Comments (12)

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Thank you so much for voicing what I've always thought. Closing Guantanamo is a purely symbolic gesture with absolutely no real human rights implication. The detainees there will simply be moved somewhere else.

Posted by: Rabi on January 12, 2009 at 9:59 PM | PERMALINK

Rabi: Done right -- i.e., releasing or charging everyone -- it could have huge human rights implications -- as well as being vastly helpful to our foreign policy, the right thing to do, etc.

Posted by: hilzoy on January 12, 2009 at 10:39 PM | PERMALINK

Unfortunately, Obama will have to tread carefully wrt the Uighurs to avoid ticking off a major holder of most of the US debt - China.

That alone will preclude an immediate release - although it is warranted, but just as we are unwilling to recognize Taiwan formally, to avoid upsetting out benefactor, granting them refugee status - even recognizing them as refugees - could cause that same upset.

I am all for doing this despite the risk.

I think that anyone who is not able to be shown to be a valid enemy combatant after a speedy, proper (torture-free) review, should be repatriated, provided with an option to reside in either another accepting country or the US.

Thiose who reside in the US may - and I stress may - be a threat to the US, but they will likely do one of 3 things.

1. Remain here as law- abiding citizens.
2. decide it is too hostile here and leave.
3. be a threat and be rearrested and incarcerated under real eveidencial procedures.
I doubt if the power will have a hard time keeping tabs on the habits of the 30 odd that choose that route.

[ /2c]

Posted by: reboot on January 12, 2009 at 10:53 PM | PERMALINK

We don't have to reinvent the wheel here. Just use the U.S. justice system as a model: everyone is presumed innocent; bail is routinely granted except in the most heinous cases with a strong probability of conviction. Just bring them all to the U.S. and have every case treated like a criminal case. Those evaluations could all be made within a week unless the military has been grossly remiss in collecting evidence and making conclusions based on the evidence.

As for those deemed not to be a danger who've committed no crime, I think at least $10 million per detainee might be the minimum of compensation to award. Plus a fresh U.S. passport allowing them to go anywhere in the world. Which would then obviate the "which nation will take them in" problem.

Posted by: Goose on January 12, 2009 at 11:35 PM | PERMALINK

i think someone asked what should happen to the gitmo prisoners. here is my suggestion.

1. each prisoner should be filmed. he should be filmed describing the quarters that he has been living in for however long. those quarters should be filmed.

2. each prisoner should be allowed the "air" to describe how he was given over to the usa/usmc. how he has been treated. the entirety of the record of the administration of pyschotropic drugs should be revealed to the citizens of the usa. along with any records of his/her tortures.

he/she should also be allowed to describe how the us forces sodomized them.

3. all of the clubfed[allenwood, danbury, et alia] inmates[white collar prisoners] should be removed to the federal prison in marion, indiana. and the gitmo prisoners should be relocated to those clubfed facilities.

4.judicial hearings should then be conducted with non-zionist[nonjew, non pentacostal christian] judges administering them.

all of this should be aired on cspan. so that all citizens of the united states can learn how the bushit gestapo worked. with the acquiesence of the democratic party, zionist concurrence.

so that there will never be any mistaking of the evils countenanced by the citizenry based on a series of zionist lies, furthered by all those blackmailed by zionist israel.

the citizens of the usa need to have their noses rubbed in the evil[s] that they clamored for.

willing to allow torture has been the major crime.

the torturers, some continuing to be employed by usama obama[think john brennan, think robert gates] continue to try and assert that torturing was beneficial to the interests of the usa.

i think that the record of torturing as a mechanism of state power discredits that assertion.

there is this israeli gangster, bibi netanyahu. he promotes torture as a beneficial mechanism. it's ironic. his father, wrote what some consider to be the definitive history of the spanish inquisition. within that volume, that history, i think you can learn that the victims of torturing will tell you anything that you want to hear. torture is the act of individuals who want to create a confirmation of their evil ideas. by any means.

Posted by: albertchampion on January 13, 2009 at 12:32 AM | PERMALINK

"Rabi: Done right -- i.e., releasing or charging everyone -- it could have huge human rights implications -- as well as being vastly helpful to our foreign policy, the right thing to do, etc."

But that has nothing to do with closing Gitmo. They could reinstate habeas and keep the prison, or they could close it and continue to detain the inmates elsewhere.

Posted by: Rabi on January 13, 2009 at 6:35 AM | PERMALINK

and where will these people be moved? I don't want them in my town! Leave it open!

Posted by: Dawn on January 13, 2009 at 8:14 AM | PERMALINK

It is really very simple - get the politics out of it and let the military do what is required as this is what we did after both WW1 and WW11.

If the military decides they do not have enough evidence to obtain a verdict for any of the holdees, then simply send them back to their country of orgin and ask them to review the data for their decisions. America does not have to release them into America society for any reason.

Posted by: Gene44 on January 13, 2009 at 8:21 AM | PERMALINK

Obama will "accomodate" Gitmo for Bush.

He'll add..

bike trails, bicycles..... and helmets.
Segmay trails, segways.... and helmets.
Pretzel bowls ...... and helmets.

Bush will LOVE it !

Posted by: '08ama on January 13, 2009 at 8:28 AM | PERMALINK

Quite a conundrum! Too dangerous to release but not definable as "criminal."
Well, we could let them go, and rearr3est them when they've killed several hundred people.
Maybe we should reclasify them as prisoners of war and hold them til AlQaeda surrenders.

Posted by: John D. Froelich on January 13, 2009 at 9:55 AM | PERMALINK

Releasing these prisoners would be akin to releasing German or Japanese POW's during WWII with one very important exception. These were not soldiers wearing the uniform of a warring enemy, but rather not part of a standing army. These we call spies. During WWII captured spies were shot after being subjected to interrogation.

I would like to know how you determine that moving these prisoners to another location and closing Gitmo is a better proposition.

Also, remember these are not US citizens, and therefore not garenteed civil rights under our constitution.

Public trials cannot be done without risking making public certain intelligence we wish to protect.

Posted by: Rick on January 13, 2009 at 3:52 PM | PERMALINK

It would seem most satisfactory to send the remaining 250 or so detainees to whatever neighborhood that Dennis Kucinich lives in and if not accepted there to those who see them as individuals whose rights have been violated. Why not an "Adopt A ???" program. Seriously, you could take these folks into your home and show all those morons out THERE in America and the E.U. how justice works.

OOPS, by the way, the E.U. DEFINITELY DOES NOT WANT THEM. Whew, that should help with the Adopt program.

Just a thought, Good Luck and Thanks.

Posted by: Judge on January 13, 2009 at 4:20 PM | PERMALINK



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