Unsurprisingly enough, Barack Obama has been named the Time Person of the Year for 2008. Interestingly, in the piece, President-elect Obama’s pledge to close Guantánamo Bay “in a responsible way” is cited (BBC Report). This raises the obvious, although interesting, question of what we mean by closing the detention centre responsibly.
It seems to me that there would be a number of elements to this:
(a) The charge and trial of those who can be subjected to criminal process;
(b) The release of those in relation to whom no charges are being brought and who are found not to pose a threat to the United States;
(c) The continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States.
None of these propositions is particularly uncontroversial and all require some reflection. Those who can be subjected to criminal process ought, of course, to be charged and tried. Whether they are tried in the Military Commissions or in the federal courts is one question that should, it seems to me, be determined on a case-by-case basis depending on the sensitivity of evidence and so on. This will require the invigoration of the military commission process in order to ensure equality of arms, due process and the institutionalisation in practice and in principle of the presumption of innocence. As Diane noted earlier this week, her trip to Guantánamo Bay to observe the trial of a number of accused there certainly suggests that substantial work remains to be done on this front.
As regards the release of those in relation to whom no charges are to be brought and who are deemed not to pose a threat to the United States the question of where these individuals are to be sent to is germane. There is a lot of chatter about the implications of the principle of non refoulement for these individuals and, indeed, for the US in deciding on where to send these individuals. This has resulted in approaches to various other governments to accept Guantánamo Bay detainees but, it seems to me, is characterised by a singular failure on the part of the US to contemplate bringing those individuals to the United States itself, with their families, and providing them with housing, compensation and opportunity. Why there is such aversion to this proposition is really quite beyond me, although I’d be interested to hear some views. I have argued previously, in an op-ed in the Irish Times, that providing for those who were unjustifiably detained in this way is a moral obligation on the part of the US and I have yet to be convinced that I am wrong.
The third proposition—the continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States—is perhaps the most controversial. As noted by Deborah Pearlstein over on Opinio Juris earlier this week, there is a growing consensus that this course of action may need to be taken. Some of us (myself and Claire Macken, for example) have previously made out the case that this is in fact compatible with international law which provides for ‘preventive detention’ provided it is accompanied by rigorous review processes. This position is somewhat unpopular, of course, but nevertheless faced with the prospect of individuals deemed through due process before a court to pose a serious threat to the United States, there does not appear to be any other responsible alternative available to the Obama administration, although I would be interested to hear any views that readers have on this matter.
It seems to me that there would be a number of elements to this:
(a) The charge and trial of those who can be subjected to criminal process;
(b) The release of those in relation to whom no charges are being brought and who are found not to pose a threat to the United States;
(c) The continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States.
None of these propositions is particularly uncontroversial and all require some reflection. Those who can be subjected to criminal process ought, of course, to be charged and tried. Whether they are tried in the Military Commissions or in the federal courts is one question that should, it seems to me, be determined on a case-by-case basis depending on the sensitivity of evidence and so on. This will require the invigoration of the military commission process in order to ensure equality of arms, due process and the institutionalisation in practice and in principle of the presumption of innocence. As Diane noted earlier this week, her trip to Guantánamo Bay to observe the trial of a number of accused there certainly suggests that substantial work remains to be done on this front.
As regards the release of those in relation to whom no charges are to be brought and who are deemed not to pose a threat to the United States the question of where these individuals are to be sent to is germane. There is a lot of chatter about the implications of the principle of non refoulement for these individuals and, indeed, for the US in deciding on where to send these individuals. This has resulted in approaches to various other governments to accept Guantánamo Bay detainees but, it seems to me, is characterised by a singular failure on the part of the US to contemplate bringing those individuals to the United States itself, with their families, and providing them with housing, compensation and opportunity. Why there is such aversion to this proposition is really quite beyond me, although I’d be interested to hear some views. I have argued previously, in an op-ed in the Irish Times, that providing for those who were unjustifiably detained in this way is a moral obligation on the part of the US and I have yet to be convinced that I am wrong.
The third proposition—the continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States—is perhaps the most controversial. As noted by Deborah Pearlstein over on Opinio Juris earlier this week, there is a growing consensus that this course of action may need to be taken. Some of us (myself and Claire Macken, for example) have previously made out the case that this is in fact compatible with international law which provides for ‘preventive detention’ provided it is accompanied by rigorous review processes. This position is somewhat unpopular, of course, but nevertheless faced with the prospect of individuals deemed through due process before a court to pose a serious threat to the United States, there does not appear to be any other responsible alternative available to the Obama administration, although I would be interested to hear any views that readers have on this matter.
