Reading the news around the Obama administration's failure to secure a Senate vote that would approve the necessary funding for the closure of Guantánamo Bay prison, I have to wonder what everyone is so afraid of. I do believe that the President has to take responsibility for two things that may have contributed to this setback: (i) not having outlined a clear plan for removal and relocation of the 240 detainees; and (ii) sending conflicting messages by his decision to restart the military tribunals. Either you believe that this institution cannot function as it stands and needs to be shut down and replaced with a fairer system of justice, or you don't. Carrying on with the controversial military tribunals even as you solicit government for funds to close the site hosting them, frankly, confuses people.But the fact that both Republicans and Democrats are running scared from the removal of these prisoners to the US strikes me as a bit odd. What do they think is going to happen? It's almost as if they're ascribing to them some kind of magical power that makes them stronger and unstoppable once they set foot on US soil. And I'd argue that it is this kind of attitude that sends the wrong message to current and potential enemies of the US: that even when government and security forces are in control, the terrorists still freak them out.
And the argument that these people may stand trial, be acquitted and then be released to shop at Whole Foods and visit Disneyland is also a little overwrought. First, we're dealing with different potential outcomes here. A majority of detainees, were they to be acquitted, would be transferred to their own countries, or may be able to be removed for trial on their own soil. Those who are granted domicile in some third country - because of risk of torture in their own countries (there are an estimated 60 or so who have been cleared for release and fit this description; and they're the US's problem now because they snatched them up for questioning in the first place, and have a responsibility not to return them to knowingly dangerous human rights conditions) - have the right to be tried and released, and then monitored under heightened surveillance if warranted. Because if they had been tried and acquitted in the current tribunals, where would they have gone anyway? Would they simply have said "You're free!", let them drift out to sea and hope they just hang out in the open water indefinitely? So there are some people who will be set free (well, who technically are already free but still being detained) and whom the US will have to contend with, most probably by having third countries (rather than the U.S itself) domicile them - since for their own good as well as that of the security of the US, having any of them there is not the best idea. Of course there's also the possibility that the US magically discover that said risk of torture for these prisoners should they be returned home does not exist, and cart them off to places like China and Tunisia anyway, which I think is a damn sight more likely than sending them off to live in Yonkers. But we haven't even gotten there yet. They're right now considering whether the prisoners can be transferred to the US, to be held there. In prisons. With guards. With guns. Harry Reid, judging from his press conference, doesn't seem to get that.
REID: I’m saying that the United States Senate, Democrats and Republicans, do not want terrorists to be released in the United States. That’s very clear.
QUESTION: No one’s talking about releasing them. We’re talking about putting them in prison somewhere in the United States.
REID: Can’t put them in prison unless you release them.
QUESTION: Sir, are you going to clarify that a little bit? …
REID: I can’t make it any more clear than the statement I have given to you. We will never allow terrorists to be released in the United States. [...]
QUESTION: But Senator, Senator, it’s not that you’re not being clear when you say you don’t want them released. But could you say — would you be all right with them being transferred to an American prison?
REID: Not in the United States.
I think one thing this panic indicates is that perhaps the supporters of the Guantánamo prison expected an almost 100% conviction rate at the tribunals, but for some bizarre reason, believe that that rate would be considerably lower were the detainees to be tried in more transparent federal court proceedings that require things like evidence. Or they were relying on legal powers of indefinite detention of suspects without bringing charges. (Incidentally, that power was just granted by a judge.) But even then, aren't we meant to believe that most of the people being held, being made to endure some of the conditions we now know existed, are guilty anyway? We're all meant to think that US intelligence and operations were so efficient in identifying and rounding up the guilty parties and securing evidence (even though only 3 of the over 700 ever detained there have been convicted), that the overwhelming majority of the 240 at Guantánamo are in fact terrorists who will eventually be found to be such, and locked away. Here is the bottomline: you need evidence to convict people. Those are their own rules, no one else's. And it's their responsibility to gather that evidence humanely in order to mount their prosecution. If the evidence is sufficient for conviction, great. If not, then that's the system. But I think that the panic they're trying to create by implying that scores of terrorists will be running the streets if Guantánamo closes is alarmist and disingenuous, and needs to be soundly addressed by the President when he shares the details of his plan for closure.
But beyond what we're meant to assume is a very small minority that might be acquitted and released, even more ridiculous is the idea that those convicted pose some kind of inherent threat simply by their physical presence in the US.
"The concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing, radicalising others," [Robert] Mueller [FBI Director] said, as well as "the potential for individuals undertaking attacks in the United States".
We know that prisoners are able to maintain networks while in prison; any look at US gang activity will tell us that. But it's not as if these people will be sprinkled among the general population. Prisoners are isolated all the time for a variety of reasons. Assuming a fair judicial process in either location, there is nothing that would obtain at Guantánamo that need not obtain in any other prison facility in the US. Given that there are already 347 convicted terrorists already being successfully held in US prisons (the U.S. has already prosecuted 145 terrorism cases in federal court), and that none of the detainees now at Guantánamo can make things explode with the mere power of suggestion, I don't see what all the squawking is about. Do we really believe that they're going to escape into the night and end up driving the school bus?
I won't deny that there are some real facts here that the President needs to address:
- 14% of those already released have been re-engaged in terrorist activity. The President believes this was due to a poor system of decision-making on whom to release. We can only wait and see if his measures will prove more successful.
- Almost a quarter of those currently detained have been cleared of suspicion, not had any charges brought and approved for release. This release is hampered by potential human rights violations in their own countries. Most of these are considered to be at the lowest threat level: essentially, they were out milking the goats and the next thing they knew were being flown off to Cuba.
- There is some number of those still being held who are most likely guilty of some terrorist activity, but to date cannot be effectively prosecuted. The President is proposing a 'new legal framework' to address these prisoners.
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