Will Closing Guantanamo Be Change We Can Believe In?

As the president-elect undoubtedly is finding out, there is no easy answer to Guantanamo. In an interview on 60 Minutes, he affirmed that his administration would shut down the prison camp at Guantanamo Bay. The debate has shifted on this with the departure of the Bush administration. There is no question that Guantanamo should be shut down, although only 29% of Americans favour this and the Republicans may still choose to make it a political issue. Guantanamo has damaged the image of the U.S. internationally. It also should be remembered that Guantanamo is the most public symbol of a secret and global prison system operated by the U.S., the extent of which is still not clear.

The bigger issue is how to shut it down. There are two main problems: 1. what to do with those in the camp who are innocent and 2. what to do with those who are suspected of crimes.

1. With respect to the first group, there are two points to this: some countries will refuse or have refused to accept their citizens back—some would welcome them back with open arms holding clubs to beat them with—this is a problem the British government has run into and which it tried to get guarantees from countries such as Libya about. It is highly doubtful that the U.S. would be willing to accept the prisoners since this would be politically damaging for the Obama administration with the Republicans having a field day in portraying Obama as soft on terrorism. The more likely solution is that the U.S. will, in effect, bribe a third country to take the prisoners.

2. Then there are those, perhaps as many as 80, suspected of crimes who the U.S. wishes to put on trial—the problem here is there seems no easy solution—the military commissions lack credibility and appear not to fit with the restoration of legality to the war on terror as sought by the Obama administration even though they continue to be used and, in a case that received, almost no publicity because it happened the day before the U.S. election, a commission sentenced an acknowledged al-Qaeda activist to a life sentence. The alternative legal approach is to then put them through a regular criminal court in the U.S.—here problems would arise over the denial of rights to prisoners—held incommunicado, held without charge, and subjected to “enhanced interrogation methods” otherwise known as torture. Some evidence would not be allowed into a regular court of law because of the way it was acquired or because of the sensitivity of the information. Imagine the reaction in the U.S. if Khaled Sheikh Mohammed, the alleged mastermind of 9-11 and subjected to water boarding by the CIA, were to be acquitted. There is now talk of the need to create the power to indefinitely detain suspects along the lines of the what is now deployed by the British government to deal with those who can neither be put on trial nor sent back to their home country.

This suggests a third path with the creation of some form of national security court that would not be as transparent as a regular court but which would have a greater air of legality and legitimacy than the military approach. It would be making the best of a bad situation (one more poisoned chalice from the Bush administration) although it undoubtedly would disappoint many of Obama’s most fervent supporters.