January 26th, 2009
12:44 PM ET

Guantánamo: To close or to relocate?

[cnn-photo-caption image=http://i2.cdn.turner.com/cnn/2009/POLITICS/01/24/gitmo.detainees/art.campjustice.gi.jpg caption="President Obama has signed an executive order to close the Guantanamo Bay, Cuba, detention facility."]

David Kennedy
AC360° Contributor

It has become clear in the past week that, in political terms, the Bush administration has made Guantánamo extremely difficult to close. How do you deal with people – some innocent, some guilty, some dangerous, some not – who were held or interrogated under the relatively permissive legal rules of the Bush years once President Obama’s stricter rules are put in their place?

Terrorism is, in the end, both a serious violent crime and a tactic favored by many who see themselves as fighters in a transnational insurgency. To truly close Guantánamo, we will need to learn to accept the risks associated with combating sustained and dangerous criminal activity, whether through our criminal justice system or through the laws of military justice and armed conflict which regulate our ongoing military actions around the world. Those include the risk that some released from custody will go on to commit violent crimes or rejoin insurgent or terrorist groups.

Guantánamo is far more important as a symbol of American power, and abuse of power, than as a detention center. President Obama sent a powerful signal about his approach to American power and image by setting a firm target to close Guantánamo and secret CIA detention centers.

At the same time, he changed the rules governing people who are interrogated as suspected terrorists to conform with our longstanding military and police practices. By suspending the Guantánamo military tribunals, he also made it possible to bring these people into the more routine legal framework for either normal military operations, on the one hand, or normal criminal investigations and prosecutions, on the other.

As a detention center, Guantánamo is often depicted as a “legal black hole.” But, like the CIA’s secret prisons, it has always been an intensely regulated place. It is just that under the Bush administration, lawyers drafted rules and legal opinions permitting harsh interrogation and authorizing military tribunals very different from those long part of our military justice system.

As those rules change, some of those detained will be considered innocent and released. Others will be tried and, if convicted, serve sentences in our military or civilian prison system.

There may be prisoners whom we suspect were once seriously dangerous or who have become radicalized through their detention whom it will be difficult to try precisely because the legal regime has changed. Indeed, it may be impossible to try many held under rules which permitted interrogation techniques this administration is determined to treat as international law has long treated them – as impermissible torture. Much of the evidence which justified seizing and holding these detainees under the old rules will be hard to use in a real trial in our normal military or civilian justice systems. The temptation to reinstitute some new special process or tribunal outside our military and criminal justice system will be strong.

Moreover, we know that prisons have been the incubators for insurgents, terrorists – even freedom fighters – in many places. Although some of the prisoners may be broken or happy simply to return home in peace, others may have come in dangerous or been radicalized by their experience. This is one reason the administration is looking to detainees’ home countries for help. It may be possible to repatriate a number of those held if their own government will take responsibility for monitoring their transition to a normal life.

It is no doubt politically difficult to release Guantánamo detainees whom we cannot try and convict. But we must learn to accept the danger that some of those released will seek to commit further crimes. The release of people likely to commit violent crimes – even as insurgents or guerilla fighters – is far more routine than we imagine.

According to federal statistics, U.S. prisons and jails hold approximately 2.3 million inmates, including about 700,000 in state prisons serving sentences for violent offenses such as murder, rape, and robbery. In 2007, our criminal justice system released 725,402 prisoners out of the approximate 1.6 million serving prison sentences. Unfortunately, we have come to expect rather significant rates of recidivism. Within three years, about two thirds of those prisoners will be rearrested. Half will be re-convicted of a new crime and a quarter will be re-sentenced to prison.

In the military management of insurgency, many are rounded up by our military forces in Iraq or Afghanistan and released, even when our soldiers know that some have been and will continue to be potential insurgents. Some call it “catch and release,” but as a practical matter, it is a routine part of counter-insurgency operations.

From time to time, politicians have sensationalized the later crimes of those released from our criminal justice system – remember how Willie Horton’s release and subsequent crimes were used to attack Michael Dukakis.

Last week, President Obama asked us to “set aside childish things” in our politics and forswear the false choice between “our safety and our ideals.” If we are not willing to accept some risk of recidivism by those released from our penal and military detention systems, we will have failed to meet his challenge. It will have proven easier to close Guantánamo than to end the detention of those unjustly held there for years. People neither tried nor released will remain in a legal limbo antithetical to our ideals – just somewhere else. If this happens, the Bush administration will truly have made Guantánamo impossible to close and we will simply have moved the stain of injustice closer to home.

Editor's Note: David Kennedy is author of the book Of War and Law. He is the David and Marianna Fisher University Professor of International Relations, University Professor of Law and Vice President for International Affairs at Brown University.

soundoff (7 Responses)
  1. Elina

    This is an interesting question from the European perspective as well. Seems that the decision to close Guantanamo was the easiest part of the process. All in all, the Eu countries are willing to help the US close Guantanamo, meaning that some of those released detainees could be moved to various EU countries. However, there are some hard open questions, quite alike those faced by the US authorities; concerning e.g. the legal status of the ex detainees. Since they are not convicted they couldn't be imprisoned, but if they'd be given a refugee status it means they'd be free for example to live in a place of their own choice. Some of them might even pose an enormous security risk for their new "homecountries". No wonder there are some who think that the whole Guantanamo thing was a problem created by the US (or better to say: by the now former President's administration) and thus it should also be solely up to US to sort it out. But in fact, that might make the situation even worse, for all of us. Besides, some European leaders were very loud and clear on their demands to have Guantanamo closed, so perhaps it would be just fair to expect something in return now...

    January 26, 2009 at 3:25 pm |
  2. david /coon rapids

    president obamo seems more interested in protecting america's enemies than he is in protecting americans

    January 26, 2009 at 3:11 pm |
  3. Chris Sosa - Boston, MA

    You make an excellent point. Although if the tone of the new administration is any indicator, hopefully the risk of recidivism will not interfere with the continued commitment to our ideals.

    January 26, 2009 at 2:01 pm |
  4. Max

    Reallocate to other PARTS of the WORLD – closer to where they came from.

    So-called intelligence against these people can be provided to other trustworthy INTELLIGENCE types or DESIGNATED people at the UN.


    THEN nobody thinks the US runs the WORLD and rubs it in everyone's face.

    January 26, 2009 at 1:40 pm |
  5. Christine

    I think we need to tighten up homeland security and bridge in the United Nations on Terror, rather than try to fight it all single-handedly.

    January 26, 2009 at 1:34 pm |
  6. Martin

    Anyone at GITMO in question, follow John McCains suggestion. Send them to Levinworth.

    January 26, 2009 at 1:26 pm |
  7. Heather,ca

    I do not want terrorists in my country. I do not want them to be able to know where they are. They are not entitled to the same rights as citizens of this country. They do not represent a country or a military. They represent a terrorist organization and their involvement in and with a terrorist organization in terrorist acts against our country is a act of war. So they need to be treated and tried according to that. I find it really interesting that people are so concerned about their human rights when they have absolutely no regard for their own life or the lives of all of those who died on 9/11. They dont care about us. They want to destroy us. Yet some care about them. It makes no sense to me. They are a cancer that needs to be destroyed no given the rights that I have and a criminal trial. I also find it interesting that no country will take them. They have said no. I think of the families that had to watch the mass murder of their loved ones on 9/11 and couldnt do anything to stop it. To me this is the ultimate betrayel to them. Any one of us can have an opinion about this, but they ultimately suffered the greated, deepest and most painful loss. Yet it seems people have 9/11 fatigue and have forgotten that we were attacked. Even though not by a country, we were attacked. An act of war by a terrorist organization and I doubt they care about our human rights or anything like that. People can complain about former Pres Bush all they want and I didnt vote for him, but he did one thing that is the most important of all for our country, he kept us safe. We havent been attacked since and no domestic policy matters when you have no country when you are victim to repeated terrorist attacks. Well we havent had any on our homeland. I really wish people would remember that and the families and their pain and the justice a military court can deliver for terrorists is the right thing to do.

    January 26, 2009 at 1:18 pm |