The news that President Obama has signed an executive order to close the prison camp at Guantanamo Bay is welcome indeed.
The detainee center has become an international symbol of the practice of skirting U.S. and international law and torture. Whether the torture allegations are valid or not — and we’re inclined to believe that outright torture has been rare — keeping detainees at Guantanamo no longer serves any purpose, and closing it can’t help but improve the U.S. image, both abroad and at home.
As Obama administration members are discovering and acknowledging, however, closing the camp and deciding what to do with the 245 people still held there will not be as easy as once might have thought.
The most significant objection to the Guantanamo camp was that its creation was almost certainly an effort to find ways around American legal norms for handling prisoners. We might not know for sure until more memoirs are written or documents declassified, but it seems certain the fact that the camp was not on American soil was seen as an advantage in that it permitted people to be held indefinitely without being charged with a crime or being classified as prisoners of a conventional war.
However, the U.S. Supreme Court has ruled that prisoners at Guantanamo are entitled to habeas corpus — legal proceedings in which the government has to establish a legitimate reason for holding people prisoner or let them go. That eliminates any reason to maintain a prison camp on foreign soil. If the U.S. government runs it, it has to abide by U.S. laws and treaties.
The problem is handling the different kinds of people now imprisoned at Guantanamo. The Bush administration, having released several hundred detainees already, had identified 60 or 70 people of those remaining who are eligible for release. Among the rest, some are probably hard-core terrorists who might well take up arms or begin plotting against the U.S. if released and some probably could be released without much fear of harm.
The worst among them have probably committed crimes for which they could be convicted in U.S. civilian or military courts, but problems lie ahead for any conventional proceedings. They probably were not “read their rights” when captured, and the evidence against some might have been obtained through “enhanced interrogation” techniques, which could make the information inadmissible in court.
Some could be released to other countries, but problems exist there, too. In some countries of origin, they could easily be subject to torture. European countries have not been willing to accept Guantanamo detainees in part because President Bush was still in office and in part because the U.S. was not willing to take any of the detainees on its soil. With President Bush gone, Portugal and Germany have expressed preliminary willingness to cooperate, however.
For all these reasons, the decision to suspend military commission trials already under way and undertake a complete review of all the prisoners is sound. It will take a while to decide how to handle all these prisoners — and to be honest, some mistakes may be made and some of those released may resume activities calculated to harm the U.S. and its citizens. But the sooner the process begins the better.