x Abu Dhabi, UAEFriday 28 July 2017

Challenges loom over prison closure

Barack Obama's pledge to close the military detention facility at Guantanamo Bay, Cuba, presents the president-elect with a host of issues.

A prisoner sleeps in his cell in the camp 5 detention facility at the US Naval Base in Guantanamo Bay, Cuba.
A prisoner sleeps in his cell in the camp 5 detention facility at the US Naval Base in Guantanamo Bay, Cuba.

WASHINGTON // It is hardly as simple as shutting the doors. Barack Obama's pledge to close the military detention facility at Guantanamo Bay, Cuba, presents the president-elect with a host of complicated legal and logistical issues - ones that will probably lead to new standards for how terrorism suspects are held, interrogated and tried. "It's not as easy as the stroke of the pen or an announcement in an inaugural address; it's going to take a major investment of time," said Deborah Colson, interim director of the law and security programme at the New York-based group Human Rights First, which has drawn up a blueprint for closing the facility within a year. Mr Obama must determine which of the approximately 250 prisoners should be held and prosecuted and which should be let go, at a time when few countries have been willing to repatriate them. He will have to decide how quickly to dismantle, as he has said he will, the military commission system that has become a global symbol of the Bush administration's overreach in waging the "war on terror". And he will have to consider what are arguably the stickiest questions of all: how long the United States may hold terrorism suspects without charge on a "preventive" basis, and what rights they have while in custody. "You can close the place, but you still are going to have this problem of what are we going to do with these people you can't try," said Andrew C McCarthy, chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. "Wishing the problem away is not going to make it so." It is not yet clear how high a priority Mr Obama will make the closing of Guantanamo. Robert Gates, the defence secretary, has asked his staff to draw up a plan for shutting it and transferring prisoners elsewhere, potentially to US soil, should Mr Obama wish to move quickly. But some of the cases under way at the naval base - including that of Khalid Sheikh Mohammed, the mastermind of the September 11 attacks - will present an almost immediate challenge for the new administration. Mr Mohammed had sought, along with several co-defendants, to enter a guilty plea this month, but that plea was postponed; questions remain over whether the death penalty can be imposed and other procedural matters. The widely publicised case of Omar Khadr, a Canadian captured in Afghanistan in 2002 at the age of 15, is also scheduled to go to trial late next month. Many human rights and civil liberties groups are calling on Mr Obama to suspend immediately the military commission system, which they have long contended does not provide for fair trials and which the president-elect himself criticised on the campaign trail. They want any suspects who are to stand trial to do so in US federal court. Human Rights First issued a report in May, based on an analysis of 100 international terrorism cases brought in federal court over the past 15 years, in which it found the existing system has "capably" handled them. Sarah Mendelson of the Center for Strategic and International Studies in Washington quoted from that report in her own, Closing Guantanamo, in September. "The record of the criminal justice system concerning the prosecution of international terrorism cases far outshines that of the Guantanamo military commissions: since 2001, 145 convictions versus two convictions," Ms Mendelson wrote. But others maintain the existing system is ill-equipped to handle the complex and unique challenges of international terrorism cases. Evidence gained from intelligence sources or military interrogations could be inadmissible in civilian court, making convictions more difficult; judges and juries, in hearing cases, could face risks to their safety; and would-be plotters could glean critical information from open court proceedings. One proposed solution is creation of a special "national security court", billed by its supporters as a cross between the civilian and military systems. Mr McCarthy, a former assistant US attorney who successfully prosecuted the case of Sheikh Omar Abdel Rahman and other defendants accused in the World Trade Center bombing in 1993, is among its proponents. "We should have been able to come up with a hybrid system recognising that the criminal justice system is conceived for domestic criminals inside the US, and the military system is conceived for enemies in traditional war, where you don't have a lot of ambiguity about who is the enemy," he said. While Mr McCarthy said a national court would signal to the international community that the United States had taken a "major step" to address concerns over judicial fairness and independence, human rights activists believe such a system still risks a reprise of everything they believe is wrong with Guantanamo - even if Guantanamo itself is closed. Another significant issue in closing the prison is where to house detainees. Equally problematic, in some cases, is where to send the ones cleared for release. Some cannot be returned to their home countries for fear they could be tortured or otherwise persecuted. Albania took some released prisoners, the Chinese Uighurs, in 2006, but more recently, only Portugal and Germany have expressed a willingness to do so. Yesterday, Poland, a Nato ally of the United States, said it is not "keen" on accepting terrorist suspects. France said on Wednesday that EU members should agree on a common position on whether and how to accept former Guantanamo prisoners after it is closed. France currently holds the union's rotating presidency, but hands the torch to the Czech Republic this week, and officials indicated that no joint decision on Guantanamo detainees would be taken beforehand. The Netherlands completely ruled out accepting any of the inmates. "If they are not to be tried but cannot return to their own countries, it is first and foremost the responsibility of the country which arrested and imprisoned them, the United States," a Dutch foreign ministry spokesman said on Wednesday. The United States could accept some of them onto its own soil, as an example to other countries it hopes will follow suit; there are communities here that have agreed to take other Uighurs who have been cleared for release. But that is not likely to be well-received domestically. Even so, Mrs Colson said: "We've got a larger problem. Guantanamo itself has done major damage to America and our reputation for fairness and for transparency and for adherence to human rights and the rule of law, and we've got to solve that problem." eniedowski@thenational.ae * With additional reporting by the Associated Press and Agence France-Presse