Center for International Policy

As printed in
The Economist
May 24, 2007

Guantanamo: Easier to Open than to Close
The “legal black hole” defies attacks

FOR more than a year, George Bush has been saying that he would like to close America's notorious prison camp for suspected terrorists at Guantánamo Bay, in Cuba. Reports of detainee abuse had damaged America's image abroad, he admitted: “It kind of eased us off the moral high ground.” But other than releasing a few more detainees no longer deemed a threat or of intelligence value, little has been done to meet his avowed aim.

Indeed, the Military Commissions Act, signed into law by Mr Bush in October last year, has further tarnished America's reputation by virtually abolishing the right of any non-American deemed an enemy combatant to challenge his indefinite detention before American courts. In April the Supreme Court declined to hear two separate challenges to the constitutionality of the measure. The pleas argued that it improperly did away with the principle of habeas corpus.

On May 17th, two days after Mitt Romney, a Republican presidential hopeful, had called for a doubling of the size of Guantánamo, the House of Representatives narrowly passed (by 220 votes to 208) an amendment to next year's main defence-spending bill which would require the administration to draw up plans to try the detainees, transfer them to other facilities or release them. They would have to do this within 60 days, should the bill become law.

The amendment's Democratic sponsor, Jim Moran, hopes it will be a first step towards the outright closure of a prison that has become “a recruiting tool for extremists” as well as a “stain on our reputation”. But despite Democratic control of Congress, it will not be easy. The House Republican leader, John Boehner, has already objected that the Democrats “are leading us down the road to importing dangerous terrorists into our local communities”, and the White House has threatened to veto any bill that blocks the detention of enemy combatants.

Of the 380-odd detainees still at Guantánamo (nearly 400 have already been released), the Pentagon plans to put only around 75 on trial. Another 80 or so are awaiting transfer to other countries. The administration complains that its allies are not doing enough to help. But those allies wonder why they should accept men, branded as terrorists and embittered by years of harsh detention, that America is unwilling to admit on its own soil. Besides, that still leaves some 200 detainees in a legal limbo, apparently too dangerous to be released, yet not bad enough to stand trial.

Meanwhile, the administration is forging ahead with trials by the new military commissions, which were set up after last summer's Supreme Court ruling declaring earlier models to be unlawful. Under the new procedure, officials claim, the accused will have the right to represent himself, hear all the evidence against him, cross-examine prosecution witnesses and, if convicted, lodge an appeal all the way up to the Supreme Court. Evidence obtained through torture will be banned. Indeed, according to the officials, the detainees will have all the fundamental guarantees of fairness and due process.

Well, up to a point. In contrast to practice in normal American civilian courts, there will be no limits on hearsay evidence. Evidence obtained by “coercion” will also be permitted. All “classified” evidence, on the other hand, will either be withheld from the defendant entirely or, if used in court, produced only in a heavily “redacted” or censored form. Appeals to an independent court will generally be restricted to questions of whether the final judgment was “consistent with the standards and procedures” applicable to the military commissions, whatever that may mean.

Of the 775 detainees held at Guantánamo since the prison was opened five and a half years ago, only ten have been indicted. Just three now stand charged under the new system. One, David Hicks, a former kangaroo skinner, flew back this week to his native Australia to serve the remaining seven months of his surprisingly lenient nine-month sentence after pleading guilty to providing material support to terrorists. Other, more serious, charges carrying a possible life sentence were dropped after he agreed not to sue his American captors for maltreatment or to talk to the press for one year.

The other two, Omar Khadr, a Canadian accused of killing an American soldier in Afghanistan, and Salim Ahmed Hamdan, Osama bin Laden's former Yemeni driver, are likely to go on trial later this summer. But they are small fry compared with the 15 “high-value” suspects, recently transferred to Guantánamo from secret CIA prisons abroad. They include Khaled Sheikh Mohammed, the self-confessed brain behind some 30 actual or planned terrorist attacks, including those on September 11th 2001, and the Bali bombs of 2002. But these trials are not expected before 2008 at the earliest. Even if acquitted, they may not be released. Guantánamo is unlikely to be closed soon.

Copyright © 2007, The Economist