ACSBlog: The Blog of the American Constitution Society

by Kevin Lanigan, Director of the Law and Security Program, Human Rights First.

[Editor’s note: Human Right’s First recently released a report entitled “How to Close Guantanamo: A Blueprint for the Next Administration”]

The Bush Administration’s decision to send its “Global War on Terror” prisoners to detention camps at Guantánamo Bay was driven in large part by a desire to insulate their interrogation, imprisonment and trial from judicial scrutiny and the rule of law.  That goal was illegitimate and unworthy of the United States, and the Supreme Court has rejected the Administration’s policies on Guantánamo each time it has examined them.  

Far from making the United States more secure, these policies have actually undermined our national security. The Administration’s attempt to create a “law free zone” at Guantánamo – where prisoners are subjected to detention, interrogation and trial practices that violate basic norms of human dignity and fundamental fairness – has provided America’s enemies with an easy recruiting tool, severely impaired counterterrorism cooperation with our allies, and failed to bring truly dangerous terrorists to justice.

There appears now to be perhaps as much consensus as American politics ever achieves around the proposition that “Guantánamo should be closed.” Secretary of State Rice, Secretary of Defense Gates and President Bush all have said they would like to close Guantánamo. And the next president – whoever he is – has pledged to do so: Both Senator McCain and Senator Obama have acknowledged the damage to America done by Guantánamo, and each has vowed to close the detention facility as an early step toward repairing our reputation as a nation committed to human rights and the rule of law.

But as the current Administration has shown, it’s easy to talk about wanting to close Guantánamo. The hard part is in the doing. And a critical foundation of that hard part is defining what it really means to “close Guantánamo.”

Certainly closing Guantánamo means shutting the detention facility and ending the U.S. policy of holding prisoners there. But if that is all that closing Guantánamo means – if the prisoners are simply transferred to another detention facility (even one within the United States), with most still to be held indefinitely without charge while a few are paraded through military commission trials that have little credibility and no legitimacy – then Guantánamo will not really be closed; it will just be moved. And any administration that takes such an approach to closing Guantánamo, and still expects to reap significant national security dividends, will be sorely disappointed.  

Any meaningful plan to close Guantánamo must be based on the realization that Guantánamo is not merely a place. It is a whole basket of failed policies. And “closing Guantánamo” must mean not merely shutting the detention camps, but also (a) renouncing the policy of indefinite detention without charge, and (b) ending the military commissions, relying instead on our regular federal courts to try terrorism suspects.  

On August 19, Human Rights First unveiled a detailed, multi-phased plan to accomplish this within one year. Human Rights First’s blueprint – How to Close Guantánamo: Blueprint for the Next Administration – offers a step-by-step strategy for closing Guantánamo in a way that will both promote America’s security and begin to restore the United States’ traditional position of world leadership in human rights and the rule of law. The blueprint sets forth a series of recommendations in three phases: steps to be taken during the first month of the next administration; steps to be taken within the first six months; and steps to be taken – and completed – by the end of the first year.

Human Rights First is not a recent arrival on the Guantánamo scene. Our observers have made 25 trips to Guantánamo and have attended nearly every military commission hearing since the proceedings began in 2004. We have participated in amicus briefing in all the key Supreme Court cases involving Guantánamo and other “War on Terror” detentions, and have issued substantial reports addressing aspects of U.S. detention policy regarding Guantánamo and elsewhere – Leave no Marks: Enhanced Interrogation Techniques and the Risk of Criminality; Tortured Justice: Using Coerced Evidence to prosecute Terrorist Suspects; and Arbitrary Justice: Trial of Guantánamo and Bagram Detainees in Afghanistan. 

Last year we commissioned two former federal prosecutors – Richard Zabel and James Benjamin of the law firm Akin Gump Strauss Hauer & Feld – to carefully examine international terrorism prosecutions brought in the federal courts. Their report, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, which we published in May 2008, examines more than 120 cases prosecuted over the past 15 years and proves the regular federal courts to be highly adaptive and flexible in delivering justice in complex terrorism cases. And beginning in November 2007, we had the opportunity to participate in the inter-disciplinary and nonpartisan Working Group on Guantánamo and Detention Policy convened by the Center for Strategic and International Studies (CSIS), which issued last month Closing Guantánamo: From Bumper Sticker to Blueprint, an in-depth, balanced, and critically important contribution to a new and sound U.S. government policy on Guantánamo.

Human Rights First’s blueprint recommends that the next president take the following steps during his first month in office: (1) announce his intention to empty the Guantánamo Bay detention facility in one year; (2) direct the Attorney General to review cases for federal court prosecution; (3) direct the Secretary of State to review the remaining cases and, on the basis of “individualized risk assessments,” designate detainees for transfer to prosecution before regular U.S. courts, or to repatriation or resettlement in other countries (including for possible prosecution there); (4) suspend all pending military commission proceedings; and (5) end the flawed Combatant Status Review Tribunals.

By the end of his first six months in office, the next president should complete the process of bringing detainees who have committed crimes against the United States to U.S. soil for prosecution; propose legislation to repeal the Military Commissions Act; and direct the Secretary of State to initiate a more systematic program to “manage the risk posed by repatriation and resettlement.”

And by the end of its first year in office, the new administration should have initiated federal court prosecutions of detainees suspected of committing crimes against the United States and completed the transfer to prosecution, repatriation and resettlement of the remaining detainees.

The Bush Administration’s misguided embrace of indefinite detention, torture and abuse has greatly damaged the reputation of the United States, fueled terrorist recruitment and undermined international cooperation in counterterrorism operations.  The challenge of addressing these problems will soon fall to the next president of the United States.  Both Senator Obama and Senator McCain seem to recognize these realities.  To restore integrity to the American justice system, repair our reputation as a nation committed to the rule of law, and promote our security, Guantánamo must be closed.