Leading human rights groups reacted with outrage
Tuesday to media reports that the administration of President George W. Bush
has decided not to close the iconic prison at the U.S. Naval Base at Guantanamo
Quoting anonymous senior Bush administration officials, the New York Times
reported that the issue would in effect be "kicked the down the road"
to await action by the new president when he takes office in January 2009.
The Times reported that Bush never considered proposals drafted by
the State Department and the Pentagon that outlined options for transferring
the detainees elsewhere.
According the newspaper, Bush adopted the view of his most hawkish advisers
that closing Guantánamo would involve too many legal and political risks
to be acceptable, now or any time soon, the officials said.
Civil libertarians were quick to condemn the administration's position.
Jameel Jaffer, director of the National Security Project for the American
Civil Liberties Union Foundation (ACLU), told IPS, "The decision to keep
the prison open is deeply irresponsible. Hundreds of men have been held without
charge and without trial for almost seven years."
"At this point, the government has both a moral and legal obligation
to close Guantanamo. Even President Bush has conceded that the prison should
be closed. But unfortunately it seems that this administration is simply unwilling
to show the leadership that would be required to actually get the job done,"
Jaffer was also critical of the controversial system of justice that exists
at Gitmo. He told IPS, "The handful of prisoners who have been charged
with crimes are being tried in a system that is unfair and unconstitutional.
It's a system that allows the government to rely on secret evidence, on hearsay,
and on evidence that was elicited through abusive interrogation methods such
Jameel Jaffer has been an active participant in cases involving GITMO, the
Bush administration's "domestic surveillance" program, provisions
of the USA PATRIOT Act, and a number of related legal issues.
Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR),
a legal advocacy organization that has provided attorneys for many of the Guantanamo
detainees expressed equal outrage.
He told IPS, "We've been saying for two years now that the government's
litigation strategy is to run out the clock on these cases and leave the mess
at Guantanamo for the next president to clean up much like the misadventure
in Iraq. At every stage the government has tried to maximize delay, with no
discernible endgame to resolve the situation."
He said that "various inside sources have told reporters for years that
there are no more than two dozen men at Gitmo who might be worthy of facing
charges. If the government chooses to charge them they should be charged and
tried in federal court inside the United States."
He added, "As to the rest, with narrow exceptions, men who are not going
to face charges simply should not be detained. The exceptions relate to people
actually captured on a conventional battlefield, which is a tiny fraction of
the men at Guantanamo about 4 percent overall."
He predicted that "over 200 of the men still at Guantanamo will be returned
to their home countries. The idea that moving prisoners to indefinite detention
in Kansas will represent an improvement over Guantanamo is ridiculous."
Other legal and human rights organizations have also weighed in on the Guantanamo
issue. For example, Human Rights First (HRF) has drafted a report, "How
to Close Guantanamo: Blueprint for the Next U.S. Administration" [.pdf],
detailing a step-by-step process for closing Guantanamo and dealing responsibly
and legally with the detainees.
According to HRF's international legal director, Gabor Rona, "Those who
can be tried under the laws of war and other criminal laws should be prosecuted.
Those who will not be prosecuted by the U.S. must be released to their home
country or a third country where they will not be at risk of ill treatment."
"They may also be subject to prosecution. But this process cannot take
place in a vacuum. It must be part of a larger effort to return the U.S. to
practices that respect its international legal obligations under the Geneva
Conventions and human rights treaties," he said.
He told IPS, "This means, at a minimum, abandoning the concept of 'enemy
combatant,' which is unknown in the laws of war and which was created by this
administration to remove detainees from the law."
Since the U.S. began sending prisoners to from Afghanistan to Guantanamo in
January 2002, the island prison has become the center of a highly charged chapter
in U.S. jurisprudence.
U.S. Appeals Courts and the U.S. Supreme Court have ruled against various
aspects of the Guantanamo legal regimen. The Supreme Court declared the Bush-constructed
military commissions unconstitutional. And it ruled that Congress could not
block detainees' right to petition for habeas corpus, an opinion legal and
human rights advocates have characterized as "a rebuke to a cornerstone
of the Bush administration's so-called 'global war on terror.'"
In another case, a highly fractured court ordered that the government establish
tribunals to determine whether individuals are in fact "enemy combatants."
That same day the court also decided Rasul v. Bush, recognizing that
Guantánamo prisoners were entitled to file petitions for habeas corpus
under the terms of the congressional Habeas Corpus Act.
In response, Bush administration lawyers established combat status review
tribunals (CSRTs) considered by many legal scholars to be kangaroo courts
where prisoners are denied lawyers and, in most cases, access to the evidence
against them and Congress passed the Detainee Treatment Act (DTA), which
revoked habeas corpus for Guantánamo prisoners, giving them access to
U.S. courts only for a cursory review of whether CSRT procedures were followed
In June 2006, the Supreme Court decided in Hamdan v. Rumsfeld that
the DTA's ban on habeas petitions did not apply to those already filed. The
Bush administration, with the complicity of key congressional Democrats, rammed
through the Military Commissions Act (MCA), which contained a provision depriving
federal courts of jurisdiction over all habeas petitions filed by Guantánamo
Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan,
became the first Guantanamo detainee ever to be tried by military commission.
He was convicted of aiding terrorism but acquitted on a charge of conspiring
to commit terrorist attacks including those on Sept. 11.
Given credit for years already served, Hamdan could be eligible for release
before the end of 2008, though the government has recently claimed that the
court overestimated the time he has served.
Over the years, evidence obtained largely from government records has shown
that practices tantamount to torture have been widely and consistently practiced
at Guantanamo, in violation of the Geneva Conventions.
The effect of Bush's decision is to retain a prison that has become a worldwide
negative icon for the administration's fight against terrorism.
The decision also leaves another major foreign policy dilemma for the next
president. Both Senators John McCain and Barack Obama have called for closing
Either candidate could reverse Bush's policy, but neither has discussed how
he would deal with the legal consequences of shutting the prison. The principal
issue is where to imprison and/or try the remaining approximately 250 Guantanamo
detainees, many of whom have already been declared eligible for release.
(Inter Press Service)