Guantanamo Made Simple

Let’s start with a few facts. As of this writing, on the last day of the Bush Administration, there are 247 detainees at Guantanamo, 16 of them designated “high value.” The detainees constitute roughly a third of the group of Muslim men who have been herded into the facility since 2002. A handful have died there, and the remainder have been “transferred,” which can mean either released from captivity in their native country or remanded to captivity somewhere other than the United States. Most of the transfers have been at the discretion of the authorities who run Guantanamo. Increasingly, however, judges, including one initially quite sympathetic to the Guantanamo operation, have been ordering detainees released. Of those who have been released, (wildly inconsistent) government reports notwithstanding, almost none have “returned to the battlefield” in any meaningful way. (Government statistics include in that category people whose “return” consisted of giving reports critical of Guantanamo to the press, or similarly unwarlike activities.)

President Obama tells us he intends to close Guantanamo. There has been a lot of unspecific discussion of how complicated this is. The reality is, it may be less complicated than meets the eye, at least with the great majority of the detainees. The first thing to do is clear our heads of the phony war paradigm the outgoing administration fostered. Except in the combat zones of Iraq and Afghanistan, this has never been a war. And practically no one at Guantanamo was captured on a battlefield, or by U.S. troops. These are not POWs but captured civilians. And the reason we captured and held them was we suspected they were part of an international criminal conspiracy, not an army. (A 2007 study by the Seton Hall Law Center for Policy and Research concluded that, based on the Defense Department’s own statistics, only 8% of detainees were characterized as having been “fighters” – even for Al Quaeda. Only one single detainee had ever been captured on a recognized battlefield.)

Hence Guantanamo has always been, and should always have been acknowledged to be, primarily a place where we kept criminal suspects. In many cases, the suspects have been maintained there for six years. These suspects have been continuously available for interrogation the entire time. For most of those six years, procedures have existed to try these suspects, and yet almost none of them have been tried. What they received instead were “Combatant Status Review Tribunals,” which concluded that almost all of them were combatants. The spate of judicial release orders just mentioned indicates that that assessment seems flawed both procedurally and substantively.

The bottom line is that we should have been using a criminal law paradigm for dealing with the detainees all along, and we certainly should start doing it now.

Very well. If we do not have a prosecutable case against most of them after six years, it seems unlikely we ever will. There may be instances where the torture that was practiced on them or others – and even the convening authority of the Guantanamo military commissions, Susan Crawford, admitted in an interview with Bob Woodward the other day that torture was the correct word for their handling, even when “approved techniques” and not waterboarding were used – has left us with the strange dilemma that whatever crimes we think they committed once upon a time, we may find it impossible to proved, because torture evidence is unreliable and inadmissible. But even so, other criminal law principles also begin to grow insistent after so long.

In our criminal law system, we do not detain people indefinitely on suspicion. So the decision to be made for almost all of them is prosecution or release. The venue for prosecution of any detainee we think fit to prosecute should be the U.S. mainland courts. Military commissions are completely discredited and distrusted at this point (for reasons that could fill up a couple of articles) and have moved so slowly that few of the detainees could expect a trial in their lifetimes there at the current pace. Courts martial have a focus on military law and military personnel. U.S. Article III courts, however, are the customary venue for trying cases against alleged civilian criminal conspirators. We should go there. There has been all sorts of concern expressed from the beginning of the Cheneydominated Bush security regime that courts would be unable to protect classified information, that detainees would make use of their subpoena power to inconvenience the courts, that the courts would be unable to cope with the size of the caseload imposed upon them, etc. It may come as a surprise to readers who have been overawed by the Cheney propaganda, but the fact is, U.S. courts have procedures for handling classified information in criminal prosecutions, the Classified Information Procedures Act. Courts have always known how to control abuse of the subpoena power. And it seems unlikely that there are going to be many prosecutions at all, so the floodgates problem is just not likely to arise.

After six years, there should be a viable case against the rank-and-file detainees. If not, it’s time to release them. I strongly suspect we shall release most of them promptly. Where they can go back to their home countries safely, we should send them there. If we cannot, we should try to find somewhere else to send them. If that too fails, we should take them in ourselves. We broke it; we bought it. Of course, we should have the FBI keep a good eye on them once they are released.

In opening, I mentioned the 16 “high value detainees.” These are the masterminds and senior operatives of the African embassy bombings, the Cole attack, and 9/11. By contrast to most of the detainees, these are truly dangerous people. You can view DOD profiles of 14 of them at

My recommendation for these is almost the same as for the “small fry” detainees: try them. I would only strike the “release them” alternative – at least for the moment. I would think no Assistant U.S. Attorney worth his or her salt would have the slightest problem convincing a judge any one of these people would pose a flight risk, so obtaining pretrial detention should be no problem, so long as it doesn’t become a substitution for a sentence.

Admittedly, the contamination of evidence by torture is apt to be a big problem with trying these individuals, and the threat of disclosure of classified information is at its greatest with them, too. But surely, with decent lawyering by a crack prosecution team, we could assemble “clean” cases and overcome these obstacles. Maybe a few spies would have to come out of the cold in order to testify. But sometimes the convictions are important enough to justify it, and these may well be such times.

We can be sure of this: the world not only wants Guantanamo closed, it wants the bad guys tried. They haunt everyone’s nightmares. The problem is, as American behavior grew nearly as ugly as that of the bad guys, we began haunting the world’s nightmares too. Trying bad guys in public according to the rules is part of what makes us us, part of what makes the rest of the world trust us. For everyone’s sake, we need to get that back.

See? That really wasn’t so complicated.