Why the U.S. can’t shut down Guantánamo Bay— even if it wants to
LUIZA CH. SAVAGEMarch272006
PRISONERS WITH NO COUNTRY
Why the U.S. can’t shut down Guantánamo Bay— even if it wants to
LUIZA CH. SAVAGE
“I do not want to go back to my country,” says a Guantánamo Bay detainee identified only as Number 219 in one of hundreds of administrative tribunal hearing transcripts declassified this month by the Pentagon. Number 219 is an ethnic Uighur, a Muslim from western China, who could be tortured or killed if returned there. “We understand that,” replied the unnamed U.S. air force colonel presiding over the hearing into 219’s status. “Arrangements will be made to find a place where you can go safely if you are determined not to be an enemy combatant.” Finding that safe place is not proving easy. Number 219, and 14 other Uighur detainees, remain at the base, despite being found not to be enemy combatants more than a year ago—and even though a federal judge recently ruled it was illegal for the U.S. government to continue detaining
them. The U.S. has offered them to Sweden, Germany and France—countries with Uighur communities, but with no one rolling out the welcome mat, they remain stuck in Cuba, with some asking for asylum in the U.S.
From Kofi Annan to the Archbishop of Canterbury, critics have been calling for the U.S. to shut down Guantánamo. But four years after prisoners of 44 nationalities began arriving there from the battlefields of Afghanistan and elsewhere, closing the detention campeven if Washington wanted to—is easier said than done. According to the Pentagon, 490 people remain in custody. Last month, as part of an annual parole board-like review process, 120 were recommended for transfer to thirdparty countries for processing under their laws, and 14 for release. They have yet to go home— because of security worries, or concerns that they will suffer human rights abuses in the places they may be returned to.
As a signatory to the UN Convention Against Torture, the U.S. is obligated not to give over people to countries where they may be harmed. Like the Uighurs, detainees from nations like Yemen, Syria, Algeria and Saudi Arabia have
said they fear repatriation. When Walid alQadasi transferred from Guantánamo to his home country of Yemen in April 2004, he found himself in a jail cell, where he claims he was beaten. And the repatriation of several Uzbeks was held up last summer when their government began firing on civilian protesters.
To critics, such complications demonstrate yet another lacuna in the Bush administration’s ill-thought-out war on terror. “We took people from all over the place who happened to gather in Afghanistan, and we made them our responsibility and committed ourselves to deal with their human rights issues,” says Harold Koh, dean of the Yale Law School and a former state department official in the Clinton administration. “It was a remarkably bad decision.” But Guantánamo backers say the problems only underscore the continuing need for the detention centre. “Surprise, surprise—in a place in Yemen or Egypt, prison is a lot worse than Guantánamo,” says David Rivkin, a former official in the Reagan and George H.W. Bush White Houses. “[Critics say] we cannot hold them, we cannot repatriate them, what are we supposed to do? Give them political asylum and social security? It’s nuts.”
No one knows the difficulties better than Pierre Prosper, the Bush administration’s ambassador-at-large for war crimes issues and lead negotiator in repatriation talks until last October. There are three groups of detainees, he explains. “Category one” detainees—some 200 to 300—are considered too dangerous to release. “Category three” detainees can be sent home without conditions. But in-between is the biggest challenge: the murky mass of “category two” detainees that the U.S. wants to send home—to prison or at least surveillance. “You have to negotiate with the particular country, and on a case-by-case basis, because each situation is different,” Prosper says. Not only does the country have to agree to take them back, but to keep them locked up and to respect their rights. “The challenge is getting people to provide the assurances, and getting them to want to do this,” he says.
The bulk of the remaining detainees come from three countries: Saudi Arabia, Afghanistan and Yemen, according to Prosper. The U.S. failed to reach an agreement with Yemen because of security concerns. Last month, for example, the mastermind of the 2000 suicide bombing of the USS Cole, Jamal Ahmed al-Badawi, escaped from a Yemeni prison with inside help from sympathetic security forces. “We are very concerned about Yemen,” says Prosper. “The Yemenis—we would love to be able to send them back but we weren’t convinced that they had the means to ensure security.” Afghanistan, on the other hand, has
signed an agreement to take back prisoners, but to date has not had the means to do so. The U.S. is helping the country prepare prisons and a legal process in anticipation of an eventual transfer. Meanwhile, Saudi Arabia has agreed in principle to accept its nationals, but discussions over details drag on.
“We wouldn’t want this to turn into a mass extraordinary rendition—where we turn people over to authorities in countries who we have a reasonable basis for believing are going to torture them,” says Eugene Fidell, president of the National Institute ofMilitaryjustice. Any agreements should allow for international monitoring of the prisoners’ treatment, says Koh, who has been involved in legal challenges to the Bush administration’s policies at Guantánamo. He predicts that eventually someone will take the detainees, providing the deal is sweet enough. “The question is not whether someone will
take them,” Koh notes, “but what is the price?” Even if the talks succeed, that would still leave “category one,” people the American government is convinced would attack the U.S. and its allies if given the chance—especially now, after being held prisoner so long. No official wants to be the one who lets the next Mohamed Atta go—and it’s not an abstract concern. Of the 267 detainees who have been transferred or released to date, at least 15 have returned to the battlefield and have
been killed or captured trying to kill Americans, said U.S. Secretary of Defense Donald Rumsfeld last month. “We shouldn’t close Guantánamo,” he told the Council on Foreign Relations. “We have several hundred terrorists, bad people, people who if they went back out on the field would try to kill Americans. That’s just a fact.”
And while closing Guantánamo might be a symbolic victory for critics, they point out that simply moving detainees to a different American prison, such as Bagram Airfield in
‘WE CANNOT HOLD THEM, WE CANNOT REPATRIATE THEM. WHAT ARE WE SUPPOSED TO DO? IT’S NUTS.’
Afghanistan—where they would continue to face indefinite detention without trial—would change nothing but the scenery. If someone has a better idea for what to do with the prisoners, Rumsfeld said, “I’d like to hear it!” That’s easy, human rights advocates say. “The answer is that you cannot keep people permanently in detention without charges and trials,” says Michael Ratner, president of the Center for Constitutional Rights, which has filed lawsuits challenging the confinement of the detainees. “Our position has been charge them—and try them.”
But trials by controversial military commissions have been held up by legal challenges—including one to the Supreme Court later this month. And the alternative of trying enemy combatants under U.S. criminal justice would be foolish, say defenders of the current policy, because the system is organized around the principle that it’s better that 99 guilty men go free than one innocent person be convicted. The suspects were often captured by third parties; evidence ranging from documents to weapons has been lost along the way; and detainees have been interrogated without lawyers. “The vast majority of people we capture cannot be successfully prosecuted,” says Rivkin. But according to critics, it’s no answer to say that people can’t be tried because the evidence is shaky—that only makes it more likely that some are being detained by mistake. The end result, if the war on terror goes on indefinitely, could be category one detainees facing life imprisonment without trial. As Prosper says, he does “see a day” when it will be time to shut Guantánamo down: “When the war on terror is over.” M
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