Obama’s problems over Guantánamo

The U.S. President-elect Barack Obama has called the detention and torture centre at Guantánamo Bay on the island of Cuba a “sad chapter in American history,” and has repeatedly said he will close it down. Some 255 people are still being held there, seven years after it was opened, in physical conditions and under regulations that violate almost every civilised norm of jurisprudence and any number of conventions on human rights. It is true that the Supreme Court has criticised the Bush administration for its treatment of the detainees, and when detainees were tried by military tribunals even prosecutors have resigned over the biased trial procedures. Nevertheless, trying the detainees in U.S. courts — at least those 60 to 80 against whom there is evidence for possible trials — will be problematic. One issue is the admissibility of evidence obtained anonymously, or without legal process, or under duress, whether by U.S. operatives or not. Another is that of whether the combined civilian criminal and military courts proposed by Mr. Obama’s aides for the 17 against whom there is apparently strong evidence will be legally acceptable, as the civilian courts require higher standards of proof and evidence than the military courts. Trials would also be complicated by the security establishment’s refusal to disclose prosecution evidence; neither do suspects captured in war have protection, under the U.S. law, against self-incrimination. Preventive detention is potentially available, but raises the question of indefinite incarceration.

As to the practicalities, moving the detainees to the U.S. mainland could be difficult because of adverse public opinion and also because any detention centre might be a target for terrorist action. The fact is, though, that no legally sustainable evidence exists against the overwhelming majority of the detainees and they would simply be free to go home. Yet that itself raises problems. Several of those released would be at serious risk of torture or death at the hands of their own governments, many of which are brutal dictatorships. Some states refuse to take their own citizens back. A particular issue has to do with the 22 Uighurs still held, who contend that if returned to China they would face death or torture for terrorist involvements which they strenuously deny. Several third countries in western Europe and Scandinavia refuse to accept the Uighurs. Even the Kafkaesque possibility that a large proportion of the detainees could both sue the U.S. government and reasonably claim asylum or citizenship cannot be ruled out. Whatever else, the Obama administration will face very difficult issues over Guantánamo.

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