By Mark Rhinard and Erik Brattberg
When President Barack Obama pledged to close the Guantanamo Bay detention facility last year, America's European allies cheered. The facility had become a lightning rod for international criticism and a dispiriting symbol of Western hypocrisy on human rights. But with the process of closing the facility now underway, the same allies who once cheered the decision have turned conspicuously quiet.
In Guantanamo, Obama inherited an almost impossible set of problems. The previous administration's flawed system for arresting, evaluating and prosecuting prisoners has made it difficult to assess security risks. When admissible evidence of crimes exists, detainees will face prosecution either in military commissions or federal courts. When evidence is patchy but substantial enough to generate security concerns, some type of further detention is necessary. And when prisoners are deemed not to be a security threat, arrangements will need to be found for their transfer and reintegration into society.
Approximately 50 persons fit into the latter category but cannot be resettled in the U.S. following a Congressional ban. Repatriation to a prisoner's home country will be difficult, either because a prisoner's origin is unclear or because of fear of persecution. It comes as no surprise that Obama will likely miss his January 2010 deadline for closing Guantanamo.
Without international help, the Guantanamo problem will linger. Closing the facility quickly will hasten an improvement in relations with the Muslim world and prevent complaints of the West 'backsliding' on commitments. Both the U.S. and Europe will benefit by restoring international legitimacy on the question of human rights and by turning the corner in their own troubled partnership in the fight against terrorism.
Thus far, however, Europe's approach has been lukewarm and piecemeal. In a recent joint statement, the European Union countries backed Washington's decision to close the facility and indicated a willingness to help. But beyond those words, only Portugal, Italy, Ireland and Spain have expressed a vague willingness to help. Previously, only France, Sweden, and the UK have received former detainees of foreign nationality.
Although the operational, legal, and political challenges facing a country's decision to accept Guantanamo detainees are substantial, those difficulties can and must be overcome. Europe's open borders require that solutions be highly coordinated, if not collectively agreed. Three sets of challenges and solutions demand immediate focus.
First, EU countries will have a difficult time evaluating asylum candidates. Detainees from Guantanamo were neither imprisoned for clear reasons, nor were they subject to due process upon incarceration. The US must share all vital intelligence information regarding the prisoners if EU countries are to consider starting the asylum process. The Counter Terrorism Group, a non-EU but trusted intelligence coordination system among European countries, may constitute an appropriate venue for collective vetting (if not decision making) of detainees bound for Europe.
Second, EU countries should also consider coordinating asylum procedures regarding the detainees. Several member states argue that detainee applications will follow existing asylum procedures. While fine in principle, in practice every EU country interprets the UN's Refugee Convention 'threat to society' clause differently. That threat may provide a loophole for countries to accept or reject applicants along the lines of national criteria, despite the fact that Europe's open borders mean a former detainee accepted in one state could travel freely throughout the region. This challenge requires two solutions. Non-binding guidelines for consideration of the threat to societal clause should be welcomed by all EU countries and help to expedite the handling of applications. In addition, the EU ought to also consider reaching a common accord regarding deradicalization and reintegration of prisoners into society.
Third, EU countries will face high costs and skeptical publics. The EU itself could offer to reimburse its member countries for some of the costs associated with processing, housing, and keeping tabs on newly settled detainees. The Obama administration should also encourage the EU by fulfilling the pledges made during a recent meeting with EU foreign ministers in Luxembourg about sharing the cost burden. Finally, Congress must repeal its law against taking prisoners, as U.S. opposition is perceived by many in Europe as unfair and hypocritical.
In sum, it is clear that the closing of Guantanamo Bay requires a truly transatlantic solution. With the dispute finally out of the way, a new foundation can be laid for a joint transatlantic counterterrorism policy based on common principles. Paving the way for such a framework, Sweden, with its long tradition of respect for international law and human rights, could use its current EU Presidency to seek to intensify EU-U.S. dialogue on international legal principles relevant to combating terrorism and heighten mutual understanding of respective legal frameworks.
Mark Rhinard is a Senior Research Fellow at the Swedish Institute of International Affairs, Stockholm (email@example.com).
Erik Brattberg is a Research Assistant at the Swedish Institute of International Affairs, Stockholm (firstname.lastname@example.org).
The views expressed are those of the author and do not necessarily represent those of the Johns Hopkins University.