Shutdown of the Guantanamo Bay Milatary Prison
by Alex Cabot

Although much was at stake during the 2008 U.S. Presidential Election, one issue that seemed to have been decided on quite early in the race was the fate of the U.S. military prison at Guantanamo Bay, Cuba. As a democrat and a former civil rights lawyer, Barack Obama had made clear his opposition to the U.S. government’s use of the prison as an indefinite holding ground for terrorist suspects early in his campaign. His opponent, John McCain, a former prisoner of war and survivor of torture, was equally vocal in his opposition to the prison, which, come January, will enter its eighth year of existence. Thus it seems that for some time the facility’s days have been numbered, and many experts now predict President-elect Obama will sign an executive order ordering its closure, possibly as early as the day of his inauguration. 

Closing Guantanamo may not be as easy as it sounds, however. According to the Defense Department, as well as several human rights groups, there are approximately 270 prisoners still detained in Cuba as of now. Of these, roughly 70 are considered to be of high value to the government — terrorists who were fairly high up the al-Qaeda chain of command, including Khalid Sheikh Mohammed, the supposed brain behind the September 11 attacks, as well as 13 other ultra-high value detainees who, for several years were being held in unidentified CIA “black sites” around the world before finally being shipped to Cuba. These are individuals who still pose an extreme risk to global society, and moreover are guilty of committing or conspiring to commit serious crimes, including not just the September 11 attacks, but also the bombing of the USS Cole in October of 2000 and the bombing of the U.S. embassies in Kenya and Tanzania in August of 1998; their prosecution at some point in the future is still almost certain. 

Included within this group of high-profile detainees are a number of senior Taliban leaders, many of whom were taken into custody seven years ago, and others who have been trickling in since the insurgency began anew in Afghanistan several years ago. Their fate may depend largely on the future of formal Afghan-U.S. relations, which in turn will depend on both foreign policy of the new administration as well as continued developments on the ground in Afghanistan.

Dr. Lisa Hajjar, of the Department of Law and Society at UCSB, argues that continued failure to contain the newly resilient Taliban insurgency might force the Afghan government under Hamid Karzai into cutting some sort of deal with the Taliban rather than pursuing their unconditional surrender, even if the U.S. objects to this policy. The terms of such a deal might involve the repatriation of former Taliban to Afghanistan, and their ultimate release into Afghan society. Ultimately we will just have to wait and see what direction the future course of events takes in Afghanistan before we will have concrete answers to this question. 

President-elect Obama and his new attorney general will now have to develop a new legal process by which these men can be charged and convicted. The Bush administration and its numerous attorneys-general have been struggling to convict terrorists held at Guantanamo Bay by military tribunals, often under the strictest secrecy and using evidence whose credibility is highly questionable. In Hamdan vs. Rumsfeld, the Supreme Court ruled in early 2006 that these tribunals were unconstitutional. New measures were put in place with the passage of the Military Commissions Act of 2006, but as of yet, virtually no foreign terrorist has been convicted of any crime. 

The remaining 200 or so inmates currently being held in Cuba are either not guilty of involvement in terrorist acts, guilty only by the weakest of associations to known terrorists, or are suspected of involvement in terrorism based on the flimsiest of evidence. Many were present in Pakistan or Afghanistan at the end of 2001 for various reasons, some of which are no doubt suspicious; however, during the heady days after the initial overthrow of the Taliban, the U.S. and its allies on the ground were offering large bounties for any non-Afghan national that the Northern Alliance turned over to U.S. custody. No doubt that with a financial incentive at stake, the Northern Alliance were willing to hand over just about any non-Afghan and therefore presumed terrorist they could get their hands on, regardless of that person’s actual affiliation with al-Qaeda or lack thereof. After seven years, many of these suspects still languish in the prison at Guantanamo Bay, having had little or no access to lawyers, relief workers, journalists, or what we in general refer to as “due process.” 

These 200 or so individuals will pose an even thornier problem for the incoming Obama administration. In another landmark Supreme Court case, Boumediene vs. Bush, the court ruled that the U.S. government cannot suspend habeas corpus indefinitely. In other words, at some point the government must make a case that a terrorist suspect is guilty of terrorist activity or is a continued threat to the U.S., or must be released. But many of these “smaller fish” hail from countries that will not accept them back upon their release, or in the case of known human rights abusers such as Egypt, Saudi Arabia, or Uzbekistan, will accept them and then certainly torture and possibly even kill them. Although the Bush administration has had little compunction about extraditing foreign nationals to their countries of origin specifically for the purposes of torture over the past seven years, the Obama administration will almost certainly discontinue this policy, in which case the question still stands: what to do with these people? 

One possibility would be to simply turn them loose in the U.S. However, as permission to live in the U.S. is viewed by many around the world as a privilege, this course of action might send out an arbitrary and perhaps even dangerous message to foreigners – essentially, conspire to commit terrorism but leave little or no evidence of doing so, spend a couple of years in jail as a terrorist suspect, and one day you might get yourself a green card! Moreover, according to Dr. Gayle Binion of the Department of Political Science at UCSB, concern exists within the government that a small number of these individuals, if freed within the U.S., might go on to commit further terrorist acts, or aid and abet others in doing so. One can only imagine the political fallout that would descend on the Obama administration if it were proved that a future terrorist act had been engineered by an individual who at one point had been in U.S. custody. Binion points out that another possibility is that the U.S. could attempt to appeal to allies and other third party countries to accept them, and arrange suitable compensation so that they could easily integrate into their new societies of residence. Keeping them under surveillance might bring an added benefit: if any tried to re-connect with former terrorist associates, global law enforcement would gain new leads in hunting down wanted terrorist suspects currently at large. 

Particular geopolitical implications exist in several groups of inmates at Guantanamo. For example, currently incarcerated there are roughly a dozen Uyghurs, or Turkic speaking natives of China’s northwest Xingjian Province, which has traditionally been Muslim but which is currently under the control of the People’s Republic of China. Since the 1990s, Xingjian has been the site of a low level insurgency by native Ugyhurs who advocate secession from China and the creation of an independent Islamic state. The Chinese government regards these secessionists as terrorists, including the 12 being held at Guantanamo Bay, and is therefore demanding their extradition to China. But if they were delivered into the hands of the Chinese they would likely be subject to arbitrary justice at best and at worst torture and even death, which would certainly reflect poorly on the Obama administration. Further complicating the matter is that the U.S. State Department also publicly regards the separatists in Xingjian as a terrorist group, and therefore would be undermining its own moral arguments about international cooperation in the fight against terrorism if it were to refuse the Chinese request. 

Needless to say, solving the legal, political, and foreign policy complexities inherent in shutting down Guantanamo once and for all will be akin to untying Gordian’s knot. After seven years of the Bush administration’s “holier-than-thou” legal approaches to prosecuting terrorists, new legal minds will soon be attacking the problem. “Unfortunately, we cannot un-ring the bell,” says Hajjar. “We cannot redo [legal processes] destroyed during the Bush administration.”