The risks posed by released detainees are overblown. Closing the prison at Guantánamo won’t be easy, but that’s a small price to pay to right a legal and moral wrong seven years in the making.
- By Karen GreenbergKaren Greenberg is executive director of the Center on Law and Security at New York University’s School of Law and author of the forthcoming The Least Worst Place: Guantanamo’s First 100 Days (New York: Oxford University Press, February 2009).
The Detainees at Guantnamo Are Hardened Terrorists
Not the majority. Since the prison opened seven years ago, confusion has reigned about exactly who is detained at Guantnamo. Officials at the prison initially knew almost nothing about their first 300 detainees beyond the hearsay reports that they were the worst of the worst. The detainees names, countries of origin, and even the languages they spoke were not immediately apparent. The circumstances of their capture and their association with al Qaeda or the Taliban were equally opaque. Only after investigators from various U.S. agencies began interviewing and interrogating the detainees, and combing through information from foreign police departments and intelligence agencies, did they find that many of their quarry had nothing to do with terrorism at all.
Even today, evidence to back up criminal charges against most of the prisoners — now numbering 243 — is scant. By all reports, about four dozen or so of the detainees will eventually be brought to trial, including the 14 high-value detainees that were transferred to Guantnamo in 2006, among them Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 terrorist attacks, and Ramzi bin al-Shibh, another alleged planner of the 9/11 attacks. Another group may be labeled too dangerous to release due to statements they have made and associations they are suspected to have. For most of these men, there is insufficient evidence to convict them at trial, or the evidence could be rejected on the grounds that it was coerced and therefore is not admissible. A large group, likely the majority of the remaining 243, will be categorized as neither indictable nor posing a danger to the United States and released.
Gitmo Detainees Released in the United States Will Pose a Danger to Civilians
No. A not in my backyard attitude has dominated talk of detainee releases: No one wants them, for fear theyll pose a danger to civilians or plan fresh attacks.
But there are no plans, to my knowledge, to release any of the Guantnamo detainees onto U.S. soil. Therefore, the only danger would come from their breaking out of prison or attracting a terrorist attack. On the first point, the U.S. military has more than enough professional expertise to detain these prisoners securely. If U.S. prison authorities are capable of incarcerating hardened criminals without fear of their escaping, similar conditions can be created for these detainees. And an attack around one of the prisons is unlikely; among the places named as temporary holding facilities are prisons in South Carolina, Kansas, and Southern California. The Department of Homeland Security and other parts of the national security matrix have spent seven years devising ways of preventing terrorist attacks in far more densely populated and vulnerable locations.
If Released Abroad, Former Gitmo Detainees Will Mount Attacks Against U.S. Targets
In most instances, no. The specter of releasing a future terrorist has loomed large over the Guantnamo debate. According to U.S. government statistics, as many as 61 of the detainees who have been transferred or released from Guantnamo (from a total of 557 releases and transfers during the past seven years) have demonstrated some sort of terrorism-related activity since their release. But so far, those releases that proved problematic were ordered not by civilian courts after weighing evidence, but by executive-branch officials acting unilaterally without judicial supervision. Many of the now-free detainees were released early to European countries as a matter of diplomatic courtesy rather than as a result of responsible legal review. With a more serious evidentiary hearing to assess the potential danger posed by the detainees, fewer such mistakes could be made.
Recently, two former Guantnamo detainees were arrested for rejoining terrorist groups in Yemen. Whether their radicalization came due to their incarceration at Gitmo, or whether their alleged terrorism association predated Guantnamo, the fact remains that there will always be some risk of returning the detainees home. Aggressive diplomacy over conditions of release and attentiveness to terrorism threats in countries such as Saudi Arabia, Yemen, and Afghanistan will of necessity be a large part of the transfer and release agreements the new administration creates.
Closing Guantnamo Is Primarily a Legal Issue
Nope, its largely a diplomatic one. It isnt only personnel at the Defense Department and the Justice Department who need to put in overtime figuring out how to close the prison at Guantnamo. Its also the diplomats at the State Department.
Nearly 800 terrorists have been held at Guantnamo during the past seven years. Nearly 560 of them have been released or transferred to their countries of origin or to third countries through diplomatic means. Of those returned, more than 300 have been sent either to Afghanistan or Saudi Arabia. Most of those returns have been done absent any trial.
Going forward, aggressive diplomacy will be the single vital tool in closing Guantnamo. Detainees from Yemen, Saudi Arabia, and Afghanistan constitute the majority of those remaining in U.S. custody. To get them home, President Barack Obama and Secretary of State Hillary Clinton will have to put pressure on these countries to ensure that the prisoners wont be subjected to torture after they are returned. The Obama-Clinton team will also have to get assurances that if the individuals are released, local law enforcement will keep abreast of their activities if such surveillance is necessary. And violations of these agreements will be taken seriously.
The United States Needs a Special National Security Court for Hard Cases
Not yet. More than 700 terrorism-related defendants have gone through U.S. courts since September 2001. Nearly all of these cases have resulted in convictions of some sort, though often on lesser charges because the evidence of terrorism is often tenuous. For example, defendants initially arraigned on terrorism charges are frequently convicted of immigration violations or document fraud. As a result of the lack of terrorism convictions, the courts have appeared inadequate to the task of trying such suspects. But going forward, solid cases — with clear evidence and clear terrorism links — would likely fare just as well in the courts today as they did in the 1990s, when federal courts successfully tried and convicted hardened terrorists such as the perpetrators of the first World Trade Center bombing and the U.S. Embassy bombings in East Africa.
A new and untried national security court would be time-consuming to create and might not even solve the problems of prosecuting terrorists. Waiting for all the glitches to be ironed out would drain energy from the pressing legal issues that need to be addressed at this point in time, including how to assess evidence against alleged terrorists and on what grounds to bring terrorism-related indictments, including material support charges.
Thanks to Gitmo, It Will Take Years to Rebuild Goodwill Toward the United States
No. On the contrary, the resolution of Guantnamo is a unique opportunity to heal, with a stroke of the pen, the American image in the world. Obamas executive orders on his first day in office are a symbolic announcement of a new and different United States. More can and should be done along these lines, including formal apologies to the detainee population, as well as the possibility of reparations for those who are deemed, in future days, to have been held erroneously. Maher Arar sued the Canadian government for his rendition to Syria and was awarded $11.5 million. Whether or not there are reparations, there needs to be acknowledgment that the United States made mistakes in apprehending most of the Guantnamo detainees. We can only hope that under this new administration, the country is confident enough to admit to its mistakes and right the many legal, not to mention moral, wrongs of the past seven years.