The Guantanamo conundrum
Population of Guantanamo can be cut by one-third if all Yemenis who have been ‘cleared for transfer’ are repatriated.
The writer is an international lawyer who has worked on human rights and humanitarian law projects in the US, Europe, Asia and Africa
Late last week, the US government unexpectedly announced that it would once again begin transfers of detainees from Guantanamo Bay, stating its intention to repatriate two Algerian detainees to their homeland. The information was released in the ‘Bermuda Triangle’ of the news cycle — when awkward stories are quietly floated out and it is hoped that they will quickly sink without a trace — early evening on July 26.
While the news was certainly picked up by Guantanamo watchers, it didn’t make a big splash or even provoke much beyond the minimum required standard of predictable outrage from Congressional Republicans. Possibly this is because there weren’t very many details released: at the time of writing, the detainees had not been identified, nor had the possible transfer date or any information about related negotiations undertaken with the Algerian government. This is all very curious and prompts a number of questions.
But first: a short Guantanamo primer. Why doesn’t US President Barack Obama (or the Supreme Court, or Congress) just close Guantanamo? The various branches of the US government engage in fierce finger-pointing about the failure to do so, and the answer is complex. But for the uninitiated, here are the basics: the US Naval Base at Guantanamo Bay, Cuba, was chosen to house ‘war on terror’ detainees specifically because the Bush administration reckoned it was beyond the rule of law. The Supreme Court subsequently ruled that this is unequivocally not the case, but the legal status of the detainees housed there remains troublingly ambiguous — they have the limited right to challenge their detention, but little other control of the judicial processes to which they might be subjected.
In addition, the detainees are classified into different groups: as a result of an earlier review exercise undertaken by the Obama Administration, some have been “cleared for transfer”; some have been “cleared for transfer — but not right now” (this group is made up of Yemeni detainees); some have been “referred for prosecution”; and some have been deemed “too dangerous to transfer but not feasible for prosecution”. Finding a logistical solution to closing the prison that can juggle all these permutations will be difficult — although this self-imposed Gordian Knot doesn’t lessen the Administration’s responsibility to find a solution.
Moreover, since 2010, the US Congress has placed severe constraints on the transfer of detainees from Guantanamo in the form of language inserted into the National Defense Authorisation Act (NDAA), the annual defence spending bill for the US military. Practically speaking, the NDAA prevents the detainees from being transferred to the US (where increased constitutional protections might apply), prohibits any funding for the transfer or release of detainees to the US, and imposes very onerous restrictions on the transfer of detainees to their country of origin or a third country (unless certain waivers are invoked).
In short, the whole thing is a mess.
Which begs the question: why now? Given all the overlapping and intertwined strictures on release, why have these two Algerian detainees merited transfer? Why not the Yemenis, who make up by far the largest subset of the detainee population? The Yemeni president is visiting the US this week and Yemen’s government has repeatedly asked for the return of its citizens. The population of Guantanamo could be cut by one-third if all the Yemenis who have been ‘cleared for transfer’ were repatriated. An added wrinkle to all these considerations is the fact that some detainees don’t want to return to their country of origin, believing that they will be imprisoned or mistreated upon their return. Algeria happens to be one of those countries. Until we know who the detainees are and have heard from their lawyers, we won’t know if they fall into this category. But the danger is that we won’t learn this information until the men have already been returned, at which point it will be too late.
Guantanamo should be closed. But the detainees deserve a transparent, systematic methodology rather than a piecemeal process based on secretive political deals.
Published in The Express Tribune, August 1st, 2013.
While the news was certainly picked up by Guantanamo watchers, it didn’t make a big splash or even provoke much beyond the minimum required standard of predictable outrage from Congressional Republicans. Possibly this is because there weren’t very many details released: at the time of writing, the detainees had not been identified, nor had the possible transfer date or any information about related negotiations undertaken with the Algerian government. This is all very curious and prompts a number of questions.
But first: a short Guantanamo primer. Why doesn’t US President Barack Obama (or the Supreme Court, or Congress) just close Guantanamo? The various branches of the US government engage in fierce finger-pointing about the failure to do so, and the answer is complex. But for the uninitiated, here are the basics: the US Naval Base at Guantanamo Bay, Cuba, was chosen to house ‘war on terror’ detainees specifically because the Bush administration reckoned it was beyond the rule of law. The Supreme Court subsequently ruled that this is unequivocally not the case, but the legal status of the detainees housed there remains troublingly ambiguous — they have the limited right to challenge their detention, but little other control of the judicial processes to which they might be subjected.
In addition, the detainees are classified into different groups: as a result of an earlier review exercise undertaken by the Obama Administration, some have been “cleared for transfer”; some have been “cleared for transfer — but not right now” (this group is made up of Yemeni detainees); some have been “referred for prosecution”; and some have been deemed “too dangerous to transfer but not feasible for prosecution”. Finding a logistical solution to closing the prison that can juggle all these permutations will be difficult — although this self-imposed Gordian Knot doesn’t lessen the Administration’s responsibility to find a solution.
Moreover, since 2010, the US Congress has placed severe constraints on the transfer of detainees from Guantanamo in the form of language inserted into the National Defense Authorisation Act (NDAA), the annual defence spending bill for the US military. Practically speaking, the NDAA prevents the detainees from being transferred to the US (where increased constitutional protections might apply), prohibits any funding for the transfer or release of detainees to the US, and imposes very onerous restrictions on the transfer of detainees to their country of origin or a third country (unless certain waivers are invoked).
In short, the whole thing is a mess.
Which begs the question: why now? Given all the overlapping and intertwined strictures on release, why have these two Algerian detainees merited transfer? Why not the Yemenis, who make up by far the largest subset of the detainee population? The Yemeni president is visiting the US this week and Yemen’s government has repeatedly asked for the return of its citizens. The population of Guantanamo could be cut by one-third if all the Yemenis who have been ‘cleared for transfer’ were repatriated. An added wrinkle to all these considerations is the fact that some detainees don’t want to return to their country of origin, believing that they will be imprisoned or mistreated upon their return. Algeria happens to be one of those countries. Until we know who the detainees are and have heard from their lawyers, we won’t know if they fall into this category. But the danger is that we won’t learn this information until the men have already been returned, at which point it will be too late.
Guantanamo should be closed. But the detainees deserve a transparent, systematic methodology rather than a piecemeal process based on secretive political deals.
Published in The Express Tribune, August 1st, 2013.