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After Guantanamo

After Guantanamo, Obama's Decisions Grow More Complex

A Congressionally authorized detention framework is preferable to indefinite detention based solely on the President's constitutional authorities.

By John Bellinger

I have long urged closure of Guantanamo and was disappointed that the Bush Administration was unable to shut the facility while in office. But shuttering Guantanamo will be very difficult, and both domestic and international critics need to acknowledge the complexities, rather than simply assign blame. Our allies also should acknowledge that, however unpopular Guantanamo may be with their populations, nevertheless they are benefiting from the detention by the United States of many dangerous individuals who pose a threat to the international community as a whole, and that other governments have an obligation to help with their detention, prosecution, and resettlement, as appropriate.

To close Guantanamo, the Obama Administration will need to take the following steps: First, the new Administration must finish reviewing the files of the roughly 240 detainees who remain. Approximately 60 of these, including the 17 Uighurs, have already been approved for transfer or release to their home countries or third countries. This review is unlikely to identify a significant number of detainees who are "innocent" or who were simply "in the wrong place at the wrong time." Some unnecessary detentions have certainly occurred in the fog of war, but the easy cases were transferred out of Guantanamo long ago or, like the Uighurs, have been approved for transfer; the Obama Administration will have hard decisions to make.

Second, the State Department and the White House will need to persuade more than a dozen countries to take back the 60 detainees already identified for transfer/release, plus any additional detainees identified for transfer/release based on the file review, who are nationals of those countries. This will prove very difficult, because almost all of these detainees came from countries with spotty human rights records, such as Libya, Tunisia, Syria, Egypt, and Saudi Arabia, and the U.S. government has a policy not to return detainees to countries if there are substantial grounds to believe they will be tortured. The Obama Administration may find itself under pressure from human rights groups not to return detainees to any of these countries, but if it does not, then the Administration will need to find third countries in Europe or elsewhere to take them. A few European governments have expressed an equivocal willingness "to consider" taking a few detainees, but they have made clear that they will not take any detainees who pose any threat. (It will certainly be necessary for the Obama Administration to agree to resettle at least a handful of the 17 Uighurs in the United States in order to persuade European governments to take any detainees.) The Obama Administration is likely to find that the only solution, in most cases, is to continue to seek to return most detainees to their home countries, while seeking the best "diplomatic assurances" possible that their governments will not mistreat them upon return.

Third, the Obama Administration will need to decide what to do with the 95 Yemenis at Guantanamo. A majority of these might be approved for transfer back to Yemen, but only if Yemen can provide a more secure environment so that they do not return to terrorism. European and neighboring Arab countries might be persuaded to help build security capacity in Yemen, and they have a self-interest in doing so; neighboring Arab countries might also be willing to provide temporary "half-way houses" to facilitate the Yemenis' re-integration into Yemeni society.

Finally, at the end of the one-year deadline established in President Obama's executive order, any detainees who have not been transferred to their home countries or to third countries will have to be transferred to one or more U.S. military detention facilities inside the United States. Given the difficulties in identifying detainees suitable for transfer/release and finding countries to take them, the number to be relocated to the United States is likely to be quite large initially - perhaps as many as 150 or even more, if transfer negotiations are protracted or a large number of Yemenis cannot be resettled.

Of the detainees moved to the U.S. mainland, the Defense and Justice Departments have suggested that 60-80 might be prosecuted for acts of terrorism or war crimes. (Although military commissions have proved highly controversial, the Obama Administration may find that alternative venues for prosecution - federal courts or courts martial - are not feasible; modified military commissions may be the least bad choice for prosecution.) After their initial relocation to the United States, several dozen more might be transferred, if negotiations prove successful.

But this could still leave several dozen who cannot be prosecuted, who are too dangerous to be released, or who cannot be returned to their home countries or third countries. President Obama should seek, and Congress should enact, legislation to establish a clear statutory framework for the detention of these individuals, as well as newly captured terror suspects, subject to appropriate judicial review. Preventive detention legislation has been criticized by some, but a Congressionally authorized detention framework is preferable to indefinite detention based solely on the President's constitutional authorities.

John B. Bellinger, III, was Legal Adviser to the Secretary of State from 2005-2009 and Legal Adviser to the National Security Council from 2001-2005.

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Comments (4)

WantTheirSeats Author Profile Page:

If US supports the 17 Uighurs, who belongs to a (US recognized) terrorist organization of East Turkistan Independence, wouldn't that mean US is supporting terrorism in China ?

uzs106 Author Profile Page:

Why cant they stay in the US? Renditions to Lybia etc, some may go to Germany, is it our problem? Why should we share it?

yeolds Author Profile Page:

Mr Bellinger, is doing the usual, create a mess, then want other peoplre to clear it up. These events had nothing to do with the fog of war, but executive decisions, at times, probably, based on "extra legal" advise by various yoyo-s in the Bush administration.
1., there is no concept of "enemy combatant" in international law
2., The Consatitution does not give the President or the executive branch carte-blanche to contravene USA Statute LAW or international covenants as adopted under the advise and consent of the USA Senate.
3., As a non-USA citizen, I am fed up with trying to bail out the USA from self-inflicted wounds. You Break it, uyou opwn it.
3., Lesson from this fiasco: do not do stupid things under questionable non legal principles.

4., I think all those idiots who came upo with this fiasco [lawyers, military personel who abducted some of these innocent prisoners from the streets of Afganistan, Pakistan, etc, the agents who rortured these peole tc] should all face the Federal Court for criominal and other charges. For the USA must insist that the RULE OF LAW APPLIES TO ALL TRANSGRESSORS, indeed, it should be harsher to those who are ijn power over other individuals: eg. politicians, officers of the armed forces, bankers and their related Ponzi authors, who managed toi wreck the whole world's economy.

johngladsd Author Profile Page:

Thanks for these entirely gratuitous comments, since it was in part your own (lack of) legal acumen that vomited up this problem onto Obama's lap. You could at least be gentlemanly enough to apologize.

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