Guantanamo has become an oft-cited symbol of injustice. Many of the United States’ allies--whose cooperation is crucial to our counterterrorism efforts--have harshly criticized America’s policies and called for the closure of the Guantanamo detention facility. Prominent members of both political parties have echoed these views. At the same time, detention policies at Guantanamo have produced neither substantial reliable intelligence, nor effective prosecution of terrorist suspects.Detention policies at Guantanamo Bay have been the subject of several successful legal challenges, and the U.S. Supreme Court has rejected these policies each time it has examined them. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006) (holding that Common Article 3 of the Geneva Conventions applies to all detainees). The Court has ruled that detainees have the right to habeas corpus and accordingly declined to adopt the position that Guantanamo is a law-free zone. See Boumediene v. Bush, 128 S.Ct. 2229, 2262 (2008) (holding that detainees are “entitled to the privilege of habeas corpus to challenge the legality of their detention.”). These and other recent legal decisions indicate that current procedures at Guantanamo, if not properly reformed, will result in unnecessary legal battles that are likely to continue well past the end of the next administration’s term, and may ultimately be lost.
Detaining individuals at Guantanamo has become increasingly counterproductive to our national security objectives as it has fueled terrorist recruitment, and discouraged international cooperation that could improve our intelligence-gathering efforts. It also compromises American values and undermine the integrity of our existing legal system. Our national interests are best served by treating detainees humanely, closing Guantanamo, and demonstrating America’s renewed commitment to the rule of law.
1. Immediately upon taking the oath of office, President Obama should announce a clear plan and establish a firm timeline for Guantanamo’s closure. Those detainees suspected of involvement of terrorism should be prosecuted in existing federal courts, and the others should be repatriated, released, or resettled.
2. No detainee at Guantanamo shall be denied a meaningful opportunity to seek judicial review and obtain relief from unlawful detention without charge via habeas corpus proceedings.
3. Detainees at Guantanamo must be treated humanely at all times. At a minimum, detainees must be guaranteed the protections of all applicable domestic and international law prohibiting torture, and cruel, inhuman, or degrading treatment.
1. Immediately direct the appropriate authorities to compile and review all information in the detainees’ files. Instruct the authorities to determine which detainees should be prosecuted in the United States, repatriated, released, or resettled.
2. Direct the Secretary of Defense to release any detainee who has already completed serving a sentence imposed by military commission. Discontinue pending military commission proceedings at Guantanamo.
3. Transfer detainees charged with terrorism or other criminal offenses under U.S. law to an appropriate facility in the United States pending their prosecution in federal court.
4. Immediately repatriate or resettle detainees in accordance with applicable domestic and international law. Provide sufficient advance notice of any transfer to allow detainees to assert their rights against transfer to torture and/or continued arbitrary detention.
5. Allow the United Nations High Commissioner on Refugees (UNHCR) to conduct refugee status determinations of those detainees who express a fear of repatriation. Instruct all federal agencies to cooperate with humanitarian organizations and detainees’ counsel to find suitable options for resettlement.
6. In order to encourage other countries to agree to accept detainees for resettlement, immediately arrange for a small number of detainees who are known to pose no security risk, such as the Uighurs, to resettle within the United States.
Amnesty International USA
Bill of Rights Defense Committee (BORDC)
Council on American-Islamic Relations (CAIR)
Government Accountability Project
National Association of Criminal Defense Lawyers (NACDL)**
** NACDL strongly opposes national security courts and wants to see Guantanamo closed. Indeed, NACDL’s board has adopted the position that individuals accused of involvement with terrorist activity should be prosecuted in the federal criminal justice system; however, NACDL’s position differs from the proposed solutions included here in that it requires that individuals accused of violating the Laws of War as unprivileged belligerents be charged and prosecuted under the Uniform Code of Military Justice, consistent with the Geneva Conventions.
National Institute for Military Justice (NIMJ)
National Litigation Project of the Lowenstein International Human Rights Clinic, Yale Law School
South Asian Americans Leading Together
Stanford Law School - Mills International Human Rights Clinic
U.S. Bill of Rights Foundation
* The allies listed above support the closure of the detention facility at Guantanamo according to the Guiding Principles discussed above, but do not necessarily support every Proposed Measure. Many of them have provided more detailed blueprints for closing Guantanamo. Please contact the individuals and organizations listed in this section for further information.
A. Aren’t there some people at Guantanamo who we can’t prosecute, but are too dangerous to release?
Closing Guantanamo would not require the release of dangerous people. Most of the detainees that remain at Guantanamo do not pose any real security risk and weren’t captured by U.S. or allied forces but were turned over for bounties from unreliable sources. In the small number of cases in which there is credible evidence of involvement with terrorism or other criminal activity, the detainee should be tried in U.S. courts or repatriated. If the detainee is convicted, the U.S. would have the option of seeking to repatriate the detainee to serve out the remainder of his sentence pursuant to diplomatic arrangements, or retain custody of the detainee and incarcerate him in an appropriate U.S. facility. Even if a detainee is prosecuted in federal court and ultimately acquitted, he need not remain in the United States and can still be repatriated to his country of origin or resettled.
B. But what about enemy fighters, like the Taliban, who might return to the battlefield?
Contrary to popular misconceptions, the small number of detainees who were actually captured by U.S. or allied forces will not necessarily be released if they continue to pose a threat to ongoing military operations. In the seven years since our initial invasion of Afghanistan, the Taliban has fallen and we are no longer at war with the government of Afghanistan. Rather, the recognized government of Afghanistan is our closest and most important ally in the ongoing conflict there. The United States government has already paid for and begun utilizing a prison in Afghanistan built for the express purpose of transferring Guantanamo detainees to Afghan custody.
a. Human Rights First, How to Close Guantanamo: Blueprint for the Next U.S. Administration, August 2008, available at: http://www.humanrightsfirst.org/pdf/080818-USLS-gitmo-blueprint.pdf
b. Ken Gude, How to Close Guantanamo Center for American Progress, available at http://www.americanprogress.org/issues/2008/06/pdf/guantanamo.pdf.
c. Sarah Mendelson, Closing Guantanamo: From Bumper Sticker to Blueprint, Center for Strategic Studies, available at http://www.csis.org/media/csis/pubs/080905_mendelson_guantanamo_web.pdf
d. Jennifer Daskal, How to Close Guantanamo, WORLD POLICY JOURNAL, Fall 2007, available at http://www.mitpressjournals.org/doi/abs/10.1162/wopj.2007.24.3.29
Contact: Jennifer Daskal, Senior Counterterrorism Counsel, 202-612-4349,
e. The Government’s Long-Term Plan for Terror Suspects: Why It’s Contrary to Supreme Court Precedent, and to the New, Revised Memo on Torture, FINDLAW (Jan. 6, 2005) available at http://writ.news.findlaw.com/commentary/20050106_radack.html
f. Fighting Terrorism Fairly and Effectively: Recommendations for President-Elect Barack Obama http://hrw.org/reports/2008/us1108/
g. International Center for Transitional Justice, US Accountability Project, Policy Brief: U.S. Inquiry into Human Rights Abuses in the "War on Terror," available at: http://www.ictj.org/static/Americas/ICTJ_Commission_of_Inquiry_Policy_Brief.pdf