President Barack Obama announced on his first day in office that within a year he plans to close the controversial Guantanamo Bay detention facility.
But the matter is not as simple as just locking the gates.
“Closing Guantanamo itself as a physical entity is the least of the problems,” said Brad Roth, Wayne State law professor, during a Jan. 20 lecture. “The real question is the issue of detainees.”
Roth said there are three main issues that surround the closing of Gitmo; they are the basis of imprisonment, or the processes that lead to it, prisoner mistreatment and what to do with detainees.
“The Bush Administration seized upon the crisis of 9/11 to press forward a certain set of views about the nature of executive power,” he said. “[The Bush administration] sought to create a framework for viewing the question of detainees based upon a set of aggressive legal theory.”
Roth also said it is critical to understand that to speak of the global war on terror is not as rhetorical as the war on poverty or drugs because it is defined by an assertion of legal framework.
“We do not, in the United States, have a regime of preventative detention,” he said. “And so the [Bush] administration sought through characterizing this as a war rather than an act of criminal justice to make it possible to apprehend people.”
Detainees could then, under rules of engagement, be imprisoned as unlawful enemy combatants and without ordinary standards of due process. There are both legal and morally-sound judgments to consider.
Next, once the grounds for detention have been assessed, the U.S. Supreme Court must focus on prisoner mistreatment, accountability of the mistreatment and what evidence is legitimate.
For instance, which, if any, prisoners have been detained arbitrarily, and which ones are a legitimate threat to the United States? And what evidence against them is considered out-of-bounds because it was extracted via torture?
“Will there be some kind of process that assesses dangerousness of individuals and makes determinations that there was some threshold basis for holding people and, if so, are they a continuing danger?” Roth said. “My guess is that we will see ... that kind of system.”
But in terms of accountability, Roth said, “The [Bush] administration took the position very early on that Article Three [of The Geneva Convention] did not apply to the detainees.”
Article Three of the Geneva Convention protects all prisoners of all classifications, including prisoners of war, from cruel, inhuman, degrading and humiliating treatment. It also extends the right to due process.
“The fundamental crisis with the idea of a global war on terror is that in ordinary war, we know who the enemy is,” Roth said. “Here, the whole question is, Who are these people?Members of Al-Qaeda don’t have membership cards. There is simply no way of identifying anyone short of some specialized process.”
He said that some speculate on dealing with detainees with “an Al Capone method,” meaning prosecute them for very marginal crimes — an option he detests.
“There are all kinds of creative things we can do to fix criminality to these people,” Roth said, “because it is convenient to do so.”
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