U.S.: The Complexities of Closing Guantanamo

7 MINS READJan 22, 2009 | 21:59 GMT
Photo by Brennan Linsley-Pool/Getty Images
U.S. President Barack Obama signed an executive order Jan. 22 to close the controversial detention center at Guantanamo Bay, Cuba, within a year, along with secret CIA prisons around the world. The move is a gesture to strengthen foreign ties as the prisons have been a flashpoint for criticism of the United States since they were opened in 2002. But the technical aspects of closing the prisons are complex and full of potential pitfalls.
U.S. President Barack Obama issued an executive order Jan. 22 to close the detention center at Guantanamo Bay, Cuba, as well as the CIA secret prisons around the world within one year. Obama's orders also create a new process for the secretary of defense and the attorney general to coordinate the transfer of detainees and U.S. interrogators in accordance with the rules of the Army Field Manual. Obama is taking a calculated risk in swiftly following through with his campaign promise to shut down Guantanamo. He will have to contend with no small amount of domestic criticism that closing the camp and releasing detainees could undermine U.S. national security interests. The move will win the approval of domestic and international critics of the controversial prisons, however, and — despite the technical complexities of implementing it — could help ease some international relationships that were strained under the Bush administration. The order will have a positive effect on trans-Atlantic relations, as the European Union has long denounced the previous U.S. administration for human rights abuses at Guantanamo. In return, Obama will expect greater cooperation from the Europeans on key issues such as bolstering NATO troop commitments (especially as the U.S. military is preparing to double its force strength in Afghanistan by the summer), pursuing European-based ballistic missile defense systems and negotiating with Iran. A symbolic gesture like closing Guantanamo cannot be expected to realign European and U.S. interests dramatically — especially with Russia actively working to exacerbate European fissures and with Europe already deeply preoccupied with its own financial turmoil — but it could help set the stage for Washington and Europe to move into a tighter relationship. The closure will also aid in the new administration's dealings with the Muslim world and will deny the transnational jihadist movement what has been one of its key pillars of criticism against the United States in recent years. Given that much of the Islamic world characterized Guantanamo as an instrument of war between Islam and the West, this move signals an important break from the past administration. Obama is already giving indications that he is willing to engage in a more constructive relationship with Iran, Washington's principal state adversary in the Muslim world. With the groundwork already laid in Iraq for more fruitful U.S.-Iranian negotiations, this gesture could help build confidence in talks between Tehran and Washington. Cuba, too, has long decried the prison at Guantanamo, and has repeatedly accused the United States of perpetrating crimes against humanity on Cuban soil. The Obama administration's decision to close the prison is certainly not aimed at pleasing Cuba, but the closure will make it much easier politically for Cuba to make positive gestures toward the United States as Havana seeks an end to the crippling U.S. economic embargo against it.

The Prisoners

With the decision made to close the detention center, there remains the technical dilemma of what to do with the prisoners. The options fall into two categories: either put the prisoners on trial for their alleged crimes in the U.S. court system or turn them over to other countries. There are limits to both of these options, and it is likely that a mixture of the two will be used to address the problem. Obama on Jan. 21 suspended the special military commissions set up to try Guantanamo prisoners. The commissions were twice struck down as unconstitutional by the U.S. Supreme Court and were largely seen as denying the prisoners the civil rights that would be guaranteed in a U.S. court of law. Any trials to be held under the Obama administration would take place either in a U.S. civilian or military court. But in order for prisoners to be put on trial in the first place, there must be a strong case for prosecuting them according to U.S. jurisprudence guidelines. Some 80 of the estimated 250 prisoners currently at Guantanamo are considered to have cases strong enough to prosecute. It is not clear how many detainees held in secret CIA prisons abroad would be eligible for trial, but outgoing CIA Director Michael Hayden has indicated that the number is less than 100. However, after six years of trying to process these prisoners, held under dubious circumstances, the most clear-cut cases will have been dealt with already — meaning that those prisoners remaining who cannot be prosecuted legally will be extremely complex cases. Also, any prosecution against these prisoners would face many hurdles, and making a strong case against any of them could be very difficult indeed. A defense attorney could likely use the fact that these prisoners were held at Guantanamo or in secret prisons — many claim illegally — to support his client's case. The alleged use of torture would also certainly be brought up in defense of the prisoner. Further, many of the witnesses in these cases would be CIA officers who likely would be unwilling to testify as doing so would uncover their identities and jeopardize their operational security. Because most of these prisoners are not considered strong cases for prosecution, the United States is looking to hand them over to other countries. There are two ways to go about doing this. The first is to send the detainees back to their home countries, which in many of the cases would be either Saudi Arabia, Yemen, Pakistan or Afghanistan; Jordan, Egypt and Morocco are also high on the list. When sending prisoners back to these countries, the Obama government has to be wary of two pitfalls. The first is the risk that these prisoners, upon returning, might fall in with militants and end up carrying out attacks against the United States (Abdallah Salih al-Ajmi, a Kuwaiti held at Guantanamo until 2005, reportedly carried out a suicide attack against Iraqi security forces in Mosul in 2008); the second is that the countries taking these prisoners might execute them without a fair trial — something that could cause international blowback for the Obama administration. Obama's team would have to ensure that the prisoners would be handled humanely, but also be under tight security, which could prove to be a difficult balance to strike. Another option is to send these prisoners to third countries. Several European states have expressed a willingness to take on prisoners who otherwise would face execution in their home countries. Coming on the heels of Obama's inauguration, such a move could serve as a gesture to show a willingness to cooperate with the new administration. Portugal has outright stated its willingness to do this, while Ireland, Switzerland, Germany and France have said they are considering it. (Denmark, the Netherlands and Australia, meanwhile, have flat-out rejected this idea.) But international goodwill will only go so far: No agreements have been formalized, nor have any countries specified how many prisoners they would be willing to take. Ordering the closure of these controversial prisons enables Obama to draw a clear line distinguishing his administration from the previous one — at least on this particular issue — and fits into his promise to strengthen diplomatic relations with other countries. But actually carrying out the closures will not be simple (and will surely result in some embarrassing revelations for the Bush legacy). The closure is a largely symbolic step in addressing the U.S. image abroad, but the technical complexities that surround the cases leave a number of potential pitfalls around which the new administration will have to tread carefully.

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