Guantanamo Bay legal issues stubbornly persist

More than a decade after 9/11, and despite a presidential promise to close it, the controversial detention center remains open. Two experts talk about the legal issues surrounding the center and its prisoners.

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In January 2002, still reeling from the blow of the attacks the previous Sept. 11, the United States set up a facility at its naval base in Guantanamo Bay, Cuba, to detain and interrogate suspected foes in a global war on terror.

In the first week of his presidency in 2009, Barack Obama signed an order closing the facility but the attempt stalled. Eleven years, two wars and 779 detainees later, the facility remains open -- housing 166 captives, more than 100 of whom have been on a hunger strike for months, protesting what they consider detention without due process.

In April, Mr. Obama said, "I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed."

When the president spoke at the National Defense University before this past Memorial Day weekend, he again talked of closing the prison.

The Pittsburgh Post-Gazette recently asked David J. R. Frakt and Haider Ala Hamoudi, both University of Pittsburgh law professors and experts on the legacy of the Guantanamo facility, to assess the situation the Obama administration and the country face, and the legal issues surrounding the closure.

PG chart: Guantanamo Bay detainees: facts, figures
(Click image for larger version)

PG: Why has Mr. Obama failed to deliver on his promise of closing the prison at Guantanamo?

DF: The failure to close Guantanamo is due to a combination of two things: the president's failure to make closure of Guantanamo a priority and devote effort and political capital to it, and the obstructionist actions of Congress to make things as difficult as possible to carry out this goal.

HH: There has been strong congressional resistance to closing Gitmo. So far the president hasn't fought back very hard. ... There are about 50 high-value detainees who haven't been charged and can't be charged, but they can't be let go. The evidence is inadmissible in a respectable court system.

The problem that you're left with is, if you can't try them and you're just holding them -- under current law the only circumstances under which you can legally do that is if there's a war ... The more liberal response is to let them go. You'd repatriate them somewhere. The conservative response is to object to the idea of winding it down, to say we should just keep the war [on terror] going forever.

About the professsors

David J.R. Frakt just completed a year as a visiting professor at Pitt's law school. He served for 10 years on active duty as an Air Force Judge Advocate and for the past eight years as a JAG in the Air Force Reserves. He was lead military defense counsel for two Guantanamo detainees, winning the release of one through habeas corpus and getting all of the charges against the prisoner dismissed. That defendant, Mohammed Jawad, was repatriated to Afghanistan in August 2009. His other client, Ali Hamza al Bahlul, refused assistance and was convicted and sentenced to life in prison, and remains at Guantanamo.

Haider Hamoudi is an associate professor at Pitt, where he teaches Middle Eastern and Islamic law. He served as an expert witness for the defense in the cases of two Guantanamo prisoners, where he testified about Islamic law that related to their cases.

PG: What should the U.S. do with detainees the government believes, in good faith, to be too dangerous to set free, yet could not plausibly face trial before a tribunal?

DF: We have to look at the reason why we think they are too dangerous to release, but can't be prosecuted. If the reason is that the evidence that we have of their involvement with terrorist activities was derived through torture, then, in my opinion, the men should be released. I believe that the small risk that we will incur by releasing them is the price that we have to pay for our gross violations of human rights in the first few years of the war on terror.

PG: Is indefinite detention legal? Is there an obligation to try or release every inmate at Guantanamo?

HH: The traditional answer has been that, outside of war, you can't hold people unless you can try them. Otherwise you have to release them. But are we in a new era? Can we justify it under international law? What are the standards and processes that we would determine that someone should be indefinitely detained? These are all new questions. We haven't had to answer them before. It's just a new world and we have to figure out how we're going to deal with it.

The pending question is: Should [we require] evidence beyond a reasonable doubt when you have an organized group of individuals declaring themselves to be America's enemies, saying they want to do as much damage to the country as they can? The question needs some thought and discussion. It's different from someone who robbed a bank in Chicago.

DF: Detention of enemy prisoners of war for the duration of the conflict is lawful under international law. The Supreme Court has suggested that the same applies to the detention of enemy combatants, even though they are not being accorded the full range of rights and protections that POWs received under the Geneva Conventions.

... Many international law experts believe that the prisoner-of-war detention scheme was designed with an international armed conflict in mind -- [a] fight between two or more sovereign states -- and is not appropriate to apply in this extended struggle against armed non-state actors.

PG: What steps should Mr. Obama and Congress take to redefine the role of Guantanamo?

DF: The legal justification for detention is based on the law of war -- during an armed conflict a nation may capture enemy fighters and hold them until the cessation of hostilities. If, at some point, the president declares an end to the armed conflict, then the only people we could legitimately continue to detain would be those who have been convicted of a crime and are serving a sentence or those who have been charged and are awaiting trial. We have already transitioned our detention operations in Iraq to the Iraqis and the bulk of detention operations in Afghanistan to the Afghans.

PG: Do you have a sense, from Mr. Obama's National Defense University speech, of what Mr. Obama aims to do with the prisoners at Guantanamo?

DF: There are four categories of detainees at Guantanamo: those cleared for release, those whom the administration intends to prosecute, those who have been prosecuted and are currently serving sentences and those whom the administration has previously characterized as too dangerous to release, but unprosecutable. The president has previously supported indefinite detention for this last group, and in his speech, he offered no new specifics for how he planned to deal with this most difficult group. ... As to those cleared for release, it is clear that the president is making a renewed push to repatriate or resettle this group, over half of whom are from Yemen.

PG: Have the home governments of the prisoners made a case to set them free or have them transferred?

HH: No, they don't want them. That's part of the problem. Early on, people were picked up who probably shouldn't have been and their home countries did want them repatriated. By time the Bush administration left, those releases were done.

Now you have a lot of people whose home governments don't want them anymore, either because they aren't particularly pleasant people or because of the political differences between them and their host countries. For an example of the latter, there are Chinese Muslims who were picked up in Afghanistan. The Chinese government doesn't want them. If you send these [ethnic Uighurs] back, they're going to execute them there. ... That's the dilemma: Nobody is willing to take these guys and let them live freely.

PG: What is the justice system like in Guantanamo? Is the U.S. on solid legal ground right now, constitutionally, with respect to its treatment of Guantanamo prisoners?

HH: Representatives of the prisoners paint a negative portrayal -- the security rules, the strip searches, the force-feeding. In some circumstances, it is difficult for lawyers to speak to their clients; the conversations are monitored. The government says [detainees] have access to health care, opportunities to exercise, nobody gets beaten. ... It is not equivalent to a Soviet gulag, but for those of us accustomed to U.S. prison practices, it's worse.

PG: Do all prisoners have a right to be charged or released?

HH: The Supreme Court says they have a right to some sort of process. It's not exactly clear what kind of process they are entitled to.

DF: The military commissions system currently in effect is a tremendous improvement from the earlier versions created during the Bush administration, but they still fall short of international fair-trial standards. Only a very small handful of detainees have ever faced actual criminal charges at Guantanamo or ever will, so for most of them, there is no justice system.

PG: Is it true the military commissions have convicted only seven individuals, whereas, during the same period, America's criminal court system resolved at least 431 of the 578 terrorism cases? Why have so few prisoners had their day in court?

DF: Not only is it true that there have only been seven convictions in the military commissions, but what many people don't realize is that the legitimacy of all seven of those convictions is currently under serious question. There have only been two convictions in an actual trial.

... The current chief prosecutor [the new head of the Guantanamo military tribunal process] has decided to shift prosecutorial priorities to focus on the most serious terrorist attacks, including 9/11 and the attack on the USS Cole. These cases have proven to be extremely difficult to bring to trial, in large part because the procedures have had to be invented from scratch.

PG: Why should Americans concern themselves with the fate of the inmates at Guantanamo Bay? Should it be viewed as a moral issue, a legal issue, a budget issue?

DF: It is first and foremost a moral issue. The biggest issue for me is that there are 86 men at Guantanamo who have been cleared for release for years. Every intelligence agency and the Department of Defense have agreed that these men pose little or no risk to the U.S. or our allies.

Many have been held for over a decade. None are suspected of involvement in terrorist attacks. At most, they were foot soldiers or attended a training camp in Afghanistan in the 1990s. It is these men, primarily, who are engaging in the hunger strike. It is a national disgrace that Congress has essentially blocked the release of these cleared detainees.

HH: I think [our handling of Guantanamo] reflects how much we adhere to core values -- who is on the side of rule of law and normalized justice? Guantanamo gives the opposite impression of who we are as a nation. We should go about it in a way that protects the nation and adheres to its core ideas.

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Gabrielle Banks: First Published June 10, 2013 4:00 AM


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