The cost of indefinitely kicking the can: why continued 'prolonged' detention is no solution to Guantanamo.

• Author: Chaffee, Devon

On January 22, 2009 President Barack Obama committed to close the Guantanamo Bay detention facilities and established a process for reviewing the cases of the remaining detainees. In a May, the President indicated that this review would result in a "fifth category" of detainees who the administration would not seek to prosecute in U.S. courts or transfer or repatriate to other countries, but who would be kept in "prolonged" detention. This essay argues that continued indefinite detention of the detainees currently held at Guantanamo Bay threatens to undermine the imperative security anal foreign policy objectives that the closure of the detention facility would otherwise achieve. Continuing to kick the cases of a category of detainees down the road for indefinite, repeated review will impede efforts to close the door on the legacy of flawed detention policies that the Guantanamo facilities have come to represent.

1. INTRODUCTION

   On January 22, 2009, President Barack Obama issued an executive order that laid out strong guidance for closing the Guantanamo Bay detention facility. (1) The order launched a case-by-case review of the Guantanamo detainees led by the Justice Department, emphasized civilian courts as the appropriate forum for criminal trials, and underscored the importance of diplomatic efforts to facilitate the transfer and release of detainees. (2) These provisions inspired hope that Guantanamo's legacy of illegal detention and ill-treatment could be brought to end in a manner that would restore confidence in American justice and in the U.S. as a country committed to upholding the rule of law.

   Since January 22, and despite allegations about the lack of a cohesive plan and President's announcement that it will not meet the one year deadline, the Obama administration has made measureable progress towards closing the facility. As of November 24, the number of detainees in U.S. custody in Guantanamo has dropped from approximately two-hundred forty to two-hundred fifteen. (3) The President has announced the transfer of the five alleged conspirators in the 9/11 attacks and one detainee, Ahmed Guiliani, has been transferred and is being prosecuted in the Southern District of New York. (4) Dozens of other cases have reportedly been referred to prosecutors for trials before district courts and the Senate and the House have recently voted in favor of allowing these detainees to be brought to the U.S. to stand trial. (5) Nineteen additional detainees have been repatriated or transferred to other countries, with six European governments receiving or agreeing to receive detainees. (6) In June, the European Union (EU) members issued a joint statement with the U.S. setting forth a framework for the transfer of detainees cleared for release to European allies willing to help the U.S. "turn the page ... in a manner that comports with the rule of law." (7)

   Notwithstanding progress in civilian court prosecutions, repatriation, and transfer of those held at Guantanamo, President Obama announced at the National Archives Building in May his intention to continue to indefinitely detain some prisoners without trial after the January deadline for closing the detention facility. (8) The President described the potential scope of such detention to include those currently detained who the administration asserts cannot be prosecuted--some he admitted due to "tainted evidence"--and who the administration does not want to release because they pose a security threat. (9)

   To allow Guantanamo detainees to continue to languish in U.S. custody without trial, however, will jeopardize the very national security and foreign policy objectives that the administration is looking to achieve by closing the facility. (10) Putting detainees into indefinite detention in a new facility will simply serve to transfer the problem, not solve it, kicking the most difficult cases down the road for repeated review (11) and protracted litigation. Such a scheme would also risk tainting the legitimacy of U.S. detainee operations in theaters of armed conflict by potentially sparking fears that the mistakes at Guantanamo may be repeated. If the U.S. is to truly turn the page on past detention policy, the Obama administration must continue to vigorously pursue options for implementing its commitment to closing Guantanamo in a manner that fully comports with fundamental principles of justice and the rule of law.

2. ACHIEVING U.S. NATIONAL SECURITY AND FOREIGN POLICY GOALS IN CLOSING GUANTANAMO

   The most oft cited reasons by current and former government officials for closing Guantanamo is the damage that Guantanamo detention policies have had on the reputation of the U.S. and on U.S. counterinsurgency and counterterrorism efforts. Intelligence experts, diplomats, military leaders, former Secretaries of Defense, and former Secretaries of State all recognize that the Guantanamo legacy has hurt our relationships with our allies and our counterinsurgency and counterterrorism efforts. (12) In January, Dennis Blair, then the nominee for Director of National Intelligence testified, "I agree with the President that the detention center at Guantanamo has become a damaging symbol to the world and that it must be closed. It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security." (13)

   If the administration continues to indefinitely detain Guantanamo detainees without trial or charge, it risks prolonging the legacy of flawed and illegal detention policies that Guantanamo has come to symbolize. One week before the President's National Archive speech, three retired senior military leaders wrote the President stating that attempting to establish a system of indefinite detention without trial would perpetuate "the harmful symbolism of Guantanamo, undermining our counterterrorism efforts and squandering an opportunity to demonstrate the strength of the American system of justice." (14) The letter goes on to state:

   The Guantanamo detentions have shown that...