Asked & Answered: What's next at Guantanamo?

By Steve Thorpe

Legal News

The State Department has reassigned its special envoy responsible for closing the U.S. prison at Guantanamo Bay, Cuba. Ambassador Daniel Fried was reassigned as the department's sanctions coordinator, according to an internal notice, focusing on governments like Iran and Syria.

No one is replacing Fried as lead diplomat to persuade countries to resettle Guantanamo inmates approved for release. Instead, those responsibilities will now transfer to the department's legal office. The reduced diplomatic effort comes as a military tribunal holds more hearings into the case of alleged 9/11 mastermind Khalid Sheikh Mohammed and five other defendants. They could get the death penalty if convicted in a trial that is likely at least a year away.

Sarah Mehta joined the ACLU of Michigan staff in September 2011. Previously, she was the Aryeh Neier fellow at Human Rights Watch and the national American Civil Liberties Union, working on the rights of people with disabilities in immigration court and detention.

Q:: What does this latest development mean?

A:: When Ambassador Fried's office was created in 2009, it signaled the importance of closing Guantanamo as a key domestic and foreign policy priority for the Obama administration. Four years later, the only thing that has closed is Ambassador Fried's office.

This development is deeply troubling, not only because many detainees are languishing in that prison with no end in sight, but also because it demonstrates that this administration is resigned to its failure to close Guantanamo. The prison at Guantanamo bay was never going to be closed without dedicated staff and resources, as well as political commitment, all of which appear to have evaporated.

Q:: Tell us what's happening right now to the defendants facing trial in Guantanamo?

A:: While the public and political attention to Guantanamo has receded, the military commissions are still hearing cases, with several individuals now facing the death penalty for their alleged participation in the U.S. Cole bombing and September 11 terrorist attacks. Given the stakes in these cases, the importance of due process safeguards and transparency cannot be overstated--but have yet to be guaranteed.

Last month, in hearings on the September 11 terrorist attacks, Judge James Pohl ordered an undisclosed government agency to remove censorship equipment from the courtroom, which had been used to prevent the release of classified information to others in the courtroom (human rights monitors, press and others). The defense has filed an emergency motion to halt the proceedings pending confirmation that attorney-client communications are not also subject to monitoring and intrusion; the judge has not yet ruled.

Even in non-death penalty cases, the military commissions continue to operate in a fashion that defies justice. For example, detainees are still being tried and serving sentences for crimes that the D.C. Circuit has held were not international war crimes. The federal appeals court has already vacated two guilty verdicts for material support and conspiracy on this basis, and yet Attorney General Eric Holder continues to argue that the government can charge and try detainees on these very charges.

Q:: Have the constitutional issues surrounding the facility and its practices evolved at all in the years it's been in operation?

A:: When the tribunals at Guantanamo were first convened, the basic court rules were still being written--from the procedural rules to significant, substantive rules such as which charges would be adjudicated as war crimes at Guantanamo. Indeed, the Military Commissions Act ("MCA"), which enumerates the war crimes to be tried at Guantanamo, was only signed into law in October 2006. While there have been some procedural "fixes" to the system, the major constitutional issues surrounding both the existence of the Guantanamo prison and the use of military commissions continue to fester. For example, the significant limitation on habeas corpus remains, as does the expansive version of who can be detained and tried as an "enemy combatant." Moreover, the MCA violates the ex post facto clause, as the D.C. Circuit's recent decisions make clear, by making crimes of activity that was not illegal when it allegedly took place. These are basic jurisdictional questions and continue to be contested.

Q:: When President Barack Obama first took office, he promised to close the prison within a year. What happened?

A:: The initial courage and commitment of both the Obama Administration and members of Congress failed. While Ambassador Fried was able to transfer some detainees to their home countries or to third countries, the United States has failed to either detain and try these individuals in the U.S. or, for those whose charges have been dropped, to release them in the United States.

Q:: When he signed last year's defense bill, the president criticized provisions it included that regulated the detention, interrogation and prosecution of suspected terrorists. He called continued Guantanamo restrictions ''unwise.'' What does that say about his position on the facility?

A:: This is the second time President Obama has threatened to veto the National Defense Authorization Act but signed it anyway. In acceding to further restrictions on the rights of Guantanamo detainees, President Obama has adopted a legally and morally compromised position and appears to be resigned to Guantanamo's perpetuity. This defeatism is alarming, not only because it abandons the remaining detainees and disposes of their rights, but also because of the dangerous precedent it sets. Recognizing and entrenching caveats to the Constitution's requirements--in particular, due process and the prohibition on cruel or unusual punishment--can have abiding consequences.

Q:: What does the future hold for the facility and its prisoners?

A:: Without political commitment, it is unlikely the facility will close anytime soon--which means the indefinite detention will continue, as will these problematic military commission trials. Making incremental changes or improvements to the facility or the commissions cannot rescue Guantanamo from its status as an aberration from American standards of justice.

Published: Mon, Feb 18, 2013

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