Wednesday, February 04, 2009

The New Emperor's Closing Gitmo: The Closing of the Guantanamo Bay Detention Facility and Its Aftermath

On Monday, ACS welcomed Jon Hafetz and Matthew Waxman for a discussion on the legal ramifications of the Obama administration's closure of the Guantánamo Bay detention center. Mr. Waxman is Associate Professor of Law at Columbia Law School, where he specializes in international law and national security law. Mr. Hafetz is an attorney with the ACLU's National Security Project and has represented several Guantánamo detainees and helped coordinate the challenge to establish the right to habeas corpus at Guantánamo.

Mr. Hafetz began by remarking on how critical the next year will be, as the Obama administration will move away from a number of policies of the Bush administration on issues like Guantanamo and interrogation techniques. However, it is unclear how courts will respond.

Last June, the Supreme Court held that detainees have a constitutional right to habeas corpus, invalidating a congressional pronouncement otherwise. Hearings in their cases have begun, and so far a number of detainees have been ordered released, while other continue to be held as enemy combatants. In these cases, one critical issue, Mr. Hafetz argued, is how “enemy combatant” is defined. The defense department has employed a very broad definition, which would see many more detainees remain held. There is also litigation for individuals being held in Afghanistan and it’s currently unclear whether the Court will find habeas corpus rights extend to them.

So far the Obama administration has ordered Guantanamo be closed within a year, cases of individuals held as enemy combatants be reviewed, extraordinary rendition be abolished, and interrogation restricted to the techniques in the Army Field Manual. However, the President has not yet said whether he will continue holding people as enemy combatants. Overall, Mr. Hafetz stated, Progress has been made under the new administration, but there are many question that remain to be answered in terms of the direction of US detention policy in the coming years.

Mr. Waxman agreed that closing Guantanamo was the right thing to do. However, he suggested that it was not that simple to deal with the detainees. He thought that some that posed no risk and could return home safely should definitely be released. Furthermore, those who have committed crimes should be prosecuted in federal court. Mr. Waxman argued that there is an in-between group of detainees who are dangerous or who will be harmed if sent home, but cannot be prosecuted in federal court. Difficulties with such prosecutions stem from the need to maintain secrecy of US intelligence operations, as well as some cases that are now tainted by past US conduct in collecting evidence and performing interrogations. However, it is unclear how many detainees fit in this category and what the Obama administration should do with them.

One solution, Mr. Waxman said, would be to argue that such detainees fall into the category of enemy combatants in an on-going war. This creates the need for a detention system moving forward. He agreed that the risks of creating new detention laws are too great to justify doing so for just a few past cases, but that there might be a lot of cases in the future that can’t be handled in the existing criminal justice system.

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