Highlights
-President Obama signs orders to close detention facility and ban torture
-No easy decision when it comes to what to do with remaining prisoners
-Guantánamo detainee resurfaces in terrorist group
On January 22, 2009, as one of his first acts as Commander-in-Chief, President Barack Obama signed three executive orders calling for the following changes regarding prisoners at the Guantánamo Bay detention facility: the first ordered the closing of the Guantánamo Bay facility as well as any remaining CIA-run secret prisons located overseas; the second establishes an interagency task force to lead a systematic review of policies and procedures regarding interrogating and holding inmates at the facility; the third order bans the harshest interrogation methods employed during President Bush’s administration.
The executive orders were met with both praise and condemnation as the decision to order the facility’s closure was far easier than will be the actual implementation of the order. Though the international community appears largely behind the President’s decision, many domestic interests are been reticent to support Obama’s decision particularly as the logistics behind handling the detainees begin to unfold.
Prosecutorial Nightmare
From a prosecutorial perspective, trying the remaining 245 inmates at Guantánamo Bay is a daunting challenge. For starters, it appears that evidence pertaining to each individual prisoner is scattered amongst a host of agencies and offices, often in poorly labeled files and without having properly safeguarded evidence pursuant to chain of custody rules.
Further complicating any prosecution is the fact that President Obama’s orders have suspended the special military commissions set up under President Bush to try the prisoners – commissions which were twice struck down as unconstitutional by the Supreme Court. As such, the trials – if conducted – would have to take place either in a United States (US) civilian or military court.
Prior to being put on trial in the first place, however, each prisoner’s case must be deemed strong enough for prosecution under US jurisprudence guidelines. At present, some 80 of the roughly 250 prisoners at Guantánamo are considered to have cases strong enough to prosecute. As the more clear cut cases against inmates have already been resolved, the remaining cases are likely to face many hurdles given the length of the detentions and the likelihood that defense counsels would argue their clients had been tortured.
The challenges of prosecuting most of the remaining inmates are such that greater effort will likely be focused on moving the detainees versus bringing them to court, particularly as the intelligence agencies intimately involved in the cases are unlikely to be willing to expose their sources and methods to judicial review. As such, the Obama administration is likely going to work diligently to return the detainees to their home countries or to third-party countries.
Sending Inmates Abroad
While sending detainees abroad circumvent the many hurdles involved in the prosecutorial process, finding willing host countries is proving difficult. Several European countries have expressed their willingness to take on prisoners who would likely face execution in their home countries; however, no countries have formally agreed to the transfers, nor have any stated how many prisoners they would be willing to accept.
Portugal has stated that it is willing to accept prisoners, Ireland, Switzerland, Germany and France have shown some openness to the idea. Others, including Denmark, the Netherlands and Australia, have rejected the proposal entirely.
In addition to the handful of European states willing to accept detainees, President Hamid Karzai has also expressed a desire to see all Afghan prisoners repatriated to Afghanistan so that their cases are dealt with at home.
While the decision to close the prison has been met with widespread praise by the international community, convincing other nations to accept the detainees will likely come at a high political cost both for the US and for the receiving country.
Detainees Return to the Fight
Perhaps most troubling of all is the distinct possibility that prisoners from Guantánamo Bay who receive a trial or are repatriated to another country may return to the battlefield.
Released from Guantánamo in November 2007, Said Ali al-Shihri has since been suspected of the September 16 bombing of the US Embassy in Yemen’s capital, Sana, that killed 16 people. Referred to as the deputy leader of Al Qaeda in Yemen, Al-Shihri returned to Saudi Arabia after his release and resurfaced in Yemen after passing through a Saudi rehabilitation program for former jihadists.
A Yemeni journalist who interviewed Al Qaeda’s leaders in Yemen last year confirmed that the deputy leader was indeed the same Al-Shihri who was released from Guantánamo earlier.
Almost half of the remaining detainees at Guantánamo are Yemeni, making efforts to repatriate them exceedingly problematic, particularly as the country has yet to establish any sort of rehabilitation program to deal with incoming former inmates.
While Al-Shihri is not the only former inmate suspected of returning to the battlefield, the Pentagon has released little information beyond blanket statements suggesting that other released detainees have returned to wage terror tactics against US interests.
Outlook
President Obama’s decision, though viewed favorably internationally, is laden with potential pitfalls and hurdles. However, despite the Al-Shihri incident, we remain skeptical that a large number of former inmates are likely to return to the battlefield. In contrast, the most dangerous will most will likely either face some civil or military tribunal and remain incarcerated while the remainder will be repatriated to their home countries to await additional judicial review, or be handed off to other countries.
Repairing the damage done to the US’s reputation will be foremost on President Obama’s mind in the coming year, but we expect his upcoming policies to reflect the input of the intelligence agencies most involved with the detainment of the remaining 245 prisoners. As such, we do not expect released or repatriated inmates to pose a major national security threat to the US once released.
