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President George W. Bush is fond of saying that his administration tackles challenges head-on and refuses to leave tough decisions to his successors. No description could be further from the truth when applied to his policy at Guantánamo.
Regardless of what happens over these last months of the Bush administration, the next president will inherit a detainee policy in total disarray. Transfers out of Guantánamo have stalled; the easier cases have already been shipped out, leaving a population stabilizing at around 270 detainees. Trials of Guantánamo detainees in Military Commissions are sputtering as the unproven system struggles to get through simple procedural hearings. Future prosecutions have been thrown into doubt as charges were dropped against a detainee once thought to be the “20th hijacker” on 9/11 because too much of the evidence against him was obtained through torture.
In its third successive decision rebuking the Bush administration’s detention policies, the Supreme Court recently ruled that the Guantánamo detainees have a constitutional right to habeas corpus. This decision will finally allow the detainees to contest the lawfulness of their confinement in a truly impartial hearing before a federal judge, rejecting the Bush administration’s contention that Guantánamo existed outside the law. And beyond the prison’s walls on the eastern tip of Cuba, serious problems have arisen in Afghanistan as both U.S.- and Afghan-run detention camps are replicating the worst excesses of Guantánamo.
One critical conceptual error of the architects of Guantánamo within the Bush administration—an exclusive focus on the threat posed by the detainees themselves—has frustrated the efforts of senior officials like Secretary of Defense Robert Gates to overcome the prison’s deficiencies. This myopic vision has completely discounted the strategic impact Guantánamo has had on the global security environment. In the Bush administration’s paradigm, the risk of transferring or releasing any one detainee is measured only against the potential harm that individual might do if set free, a calculus always tilted in favor of continued detention in cases when doubt exists. In this context, the status quo gives the illusion of perfect security dramatically increasing the burden on those arguing for alternatives to Guantánamo.
The reality is that the potential harm from Guantánamo detainees to American interests is not limited to the prospect of violence perpetrated after release. Guantánamo as currently constructed has become a symbol of a rogue American hegemony that disregards the rule of law, even as it uses calls for freedom and democracy as a weapon to assert its influence across the globe. The perpetuation of that symbol does great damage to American interests. Recognizing this new paradigm significantly alters the landscape when considering the future of Guantánamo and strongly favors closing the prison and pursuing alternative regimes for those detainees that require additional imprisonment.
Counterintuitively, reaching the threshold decision to close Guantánamo will be the easiest part of cleaning up the catastrophe of U.S. detention policy. The next president will confront numerous obstacles in any effort to make changes at Guantánamo and to all U.S. detention policy, including: overturning the massive current credibility and legitimacy deficit of the United States; satisfying the real security challenges posed by some the detainees and respecting legitimate anxieties and fears about future acts of terrorism; building a far greater level of international cooperation, because even though this is an American problem, the United States cannot solve it on its own; deciding who among the Guantánamo detainees should stand trial, which trial venue is most appropriate, and what evidence can be used in those trials; and finding a new home for those detainees that are not going to be tried.
To overcome these obstacles, the president will have to overturn the Bush administration’s stubborn refusal to imprison any of the Guantánamo detainees within the United States and end the poorly conceived notion that all efforts to reduce the population at Guantánamo be based on nationality. The next president will also have to walk a fine line between the urgency to resolve the fate of many at Guantánamo in limbo for more than seven years and political realities that accompany such an emotive issue as the threat of future terrorist attacks. To accomplish these goals, the next administration should pursue a five-phase plan to close Guantánamo:
Phase One: Immediately change the dynamic at Guantánamo by announcing a hard 18-month timetable to close the prison, and for the remainder of its existence, making it as transparent as possible. These are meaningful actions that signal real change from the Bush administration, yet allow appropriate time to work through all the challenges of getting the Guantánamo population down to zero.
Phase Two: Bring a small number of detainees into the United States to stand trial in regular federal or military courts. Scrapping the flawed Military Commissions and rejecting any effort to establish National Security Courts in favor of established U.S. courts will get trials moving faster and is a major step to restore confidence in the legitimacy of America’s actions.
Phase Three: Create a resettlement and rehabilitation program in partnership with allied countries and international organizations to find homes for detainees that can’t be returned to their home countries and to smooth the re-integration of detainees into society. This program should be based on similar programs currently used by the U.S. military in Iraq and the Saudi Arabian government to assist in the transition of militants from detention to release.
Phase Four: After U.S. courts demonstrate their effectiveness and legitimacy, transfer those remaining detainees selected to stand trial into the United States. These detainees should be held at either the U.S. Penitentiary Administrative Maximum Facility, also known as the “Supermax,” at Florence, Colorado, or at the U.S. Military Detention Barracks at Ft. Leavenworth, Kansas, depending on whether they are slated for trial in federal or military courts.
Phase Five: Some detainees will remain at Guantánamo who are not candidates for trial, but who were captured during military operations in Afghanistan and may represent a threat to coalition forces still fighting in that country if they are released. Transfer this group back to Afghanistan and hold them in a NATO-controlled detention program along with prisoners captured by coalition forces during ongoing military operations.
This program can reduce the population of Guantánamo to zero within 18 months, but problems could arise in one or more of the steps, and the next administration should be prepared for the only two choices available for any remaining detainees: create a preventive detention regime and hold them indefinitely in the United States, or release them.
Choosing the preventive detention route would mean falling at the last hurdle in the long effort to eradicate the festering sore of Guantánamo. Any move to release even what is likely to be only a handful of detainees carries some genuine security threat and will be politically difficult, but it is an acceptable level of risk when measured against the significant strategic gains of the permanent closure of Guantánamo.
After more than six years of repeated failures, Guantánamo is a policy that stands squarely in the way of justice. We can shuffle the likes of Khalid Sheik Mohammed through little more than politically motivated show trials that draw attention away from his grievous crimes. Or we can believe in the strength of our system of government, bring this unrepentant terrorist to New York, and expose him as one of the world’s worst mass murderers in a courtroom near Ground Zero. There would be no better demonstration that although he was able to orchestrate an attack on the United States that claimed the lives of 3,000 people, he utterly failed to destroy America and all that it stands for.
Guantánamo can be closed. It can be done safely. And it can be done in a manner that reinforces the values that Americans have fought so long and so hard to preserve.
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