Complexities behind the Guantánamo promise

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OPINION:US president-elect Barack Obama says he is going to close Guantánamo, but it will not be an easy process, writes FIONA de LONDRAS

IN SPITE of Barack Obama's election promises to close Guantánamo Bay detention centre, repeated in his first substantial post-election interview, and to "charge or release" detainees, the US president-elect is surely now realising that the complexity of the situation calls for more nuance than an election campaign allows. The physical closure of Guantánamo Bay is in itself uncomplicated; it is what to do with the detainees that is likely to cause difficulty.

There is widespread resistance in the US to the suggestion that these detainees might be moved to the mainland. However, in reality, the US Supreme Court has more or less eradicated any "advantage" that might have been thought to accrue through detaining people there rather than in the US itself. Relying on a number of Supreme Court decisions during the second World War, the Bush administration felt that Guantánamo detainees could never access federal courts because they were non-citizens, detained in a time of "war", and held outside of the country's sovereign territory.

The current Supreme Court, however, chipped away at this precedent through a series of three cases stretching from 2004 to 2008 so that those detained in Guantánamo Bay now have a right to make habeas corpus applications in the mainland United States.

The question of where to put these detainees while they go through the legal processes of assessing whether they ought still to be held or not should, therefore, be unproblematic on a legal basis: simply move them to a high security facility in the US.

The second question - whether to charge or release them - is more problematic.

There is a case to be made for the preventive detention without charge of extremely high-risk detainees provided those detainees have had the opportunity to challenge the lawfulness of their detention before a court or, at least, an objective and impartial tribunal similar to a traditional court.

It may well be the case that a small number of individuals can be identified as especially high risk on a factual basis but may not cross the threshold of beyond reasonable doubt in a criminal trial because of defective evidence, for example. In cases of this kind, it appears puerile to insist on purism and on releasing those individuals; the so-called war on terrorism may be an overstated response to the terrorist threat, but that does not mean that such a threat does not exist and does not have to be countered.

Not every individual will fall into this "high-risk but unchargeable" category, however. Some individuals will be able to be charged and put through the normal criminal processes, and they should be. The risk of acquittal ought not to be used to prevent their trials: the least that should be expected of the state, having held these individuals in situations of extreme rights-deprivation for years, is to make out a case and run the risk of acquittal.

For those convicted, normal sentencing processes should apply and the time already spent in detention must be taken into account and credited to them. Those acquitted ought to be released. As should those (and there will inevitably be some of them) who are found to have been unreasonably detained because mistakes were made.

Some worry about where these individuals should be released to; in some cases they cannot be sent to their home countries because of an international legal principle precluding sending an individual to a state where there is a real risk that they might be subjected to torture.

The current US administration makes this argument in relation to a number of Uighurs who they admit are now unreasonably detained in Guantánamo Bay but whom they refuse to send home to China because of the systematic mistreatment and torture of Uighurs in that state.

The United States argues that other states must open their borders and take these individuals in; it is to be hoped that an Obama administration will recognise that in fact the US is morally obligated to welcome these individuals into its society, provide them and their families with homes and opportunities, and attempt to remedy the extreme wrongs that have been done to them and to their families who have suffered separation, victimisation and anxiety during the course of their incarceration.

Obama may find the Guantánamo question more complex than anticipated in this period of transition, but that complexity ought not to be allowed to obscure the possibilities for resolution that exist.

Neither should a desire to "be different" to the Bush administration obstruct Obama from the difficult and perhaps unpopular decision to hold some individuals without trial if necessary.

He and his administration can clearly distinguish themselves from George Bush by ensuring that such decisions are taken on the basis of rigorous and transparent processes rather than agreements behind the door of the Oval Office, and by ensuring that, while detained, individuals are treated with the respect and dignity that their humanity demands.

• Dr Fiona de Londras is a member of the Institute of Criminology and is law lecturer at University College Dublin

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