Commentary: What should follow closure of Guantanamo?

When President-elect Barack Obama is sworn in on Tuesday, he will face the daunting task of meeting the high expectations of an America hungry for wholesale change and yearning to recover from an eight-year assault on its treasured constitutional values by the administration of George W. Bush.

Nothing is more emblematic of that assault than the Guantanamo Bay prison camp and its shameful military commissions. It is there that due process has been suspended, the Constitution has been disregarded, and our commitment to human rights has been stained by torture.

It was encouraging when candidate Obama made promises to shutter Guantanamo. Here was someone who appreciated the importance of rehabilitating our name and returning to our core values of justice and due process that define who we are as Americans. It was even more encouraging when President-elect Obama repeated those promises. And it was downright heartening to hear that about-to-be-President Obama plans to issue an executive order closing the prison camp, perhaps even on his first day in office.

But, as is often the case, the devil is in the details. In order for an executive order to be adequate and effective, it must include a time certain for closing Guantanamo, and a detailed plan for what to do with the Guantanamo detainees – many of whom have been languishing for years without being charged, much less prosecuted – once the prison is shut down.

That plan, while requiring political courage, is not complicated. What's needed is an unqualified return to America's established system of justice for detaining and prosecuting suspects. This means not giving into political pressure to create another ad-hoc illegal detention system that permits the executive branch to continue to hold suspected terrorists without charge or trial, essentially moving Guantanamo on-shore. And it means not creating a "special" national security court system designed to accommodate the torture policies of the Bush administration. Even the most unequivocal repudiation of torture would be hollow if President-elect Obama were to construct another regime to hide its occurrence and evade its consequences.

Each detainee's case should be thoroughly reviewed. Where there is no evidence of criminal conduct, detainees should be repatriated to countries that don't torture. Where there is, they should be tried in our traditional court system which has a proven track record of accommodating sensitive national security concerns without compromising fundamental values and American justice.

The call for a "third way" approach is generally fueled by the notion that there are some detainees who are "too dangerous to be released but who cannot face criminal charges." This is mostly based on the assumption that some detainees have committed crimes not covered by American law and that much of the evidence against them would not be admissible in a traditional court because it was coerced through torture or abuse.

But federal prosecutors have an impressive arsenal of prosecutorial weapons at their disposal, including laws against conspiracy to commit homicide, the harboring or concealing of terrorists and providing "material support" to terrorist organizations. The government can secure a conspiracy conviction by proving only an agreement to commit a criminal act and any step to further that agreement. If the government cannot meet that minimal burden of proof, it is difficult to see why it should continue to detain a suspect.

It is true that many of the statements obtained from detainees through abusive interrogation would not be admissible in a court of law. But the fact that the US justice system prohibits imprisonment on the basis of evidence tortured out of prisoners is one of its strengths, not a weakness. It's why we can call it a "justice system" in the first place. Moreover, one would hope that if a prisoner were as guilty or dangerous as claimed, the government would have gathered enough admissible evidence to prove its case from untainted sources like physical surveillance or computer and cell phone information.

There's no doubt the Bush administration's abhorrent detention policies have left our next president with a huge mess to clean up. But when it comes to restoring America, bold action and strong conviction are required. There is no room for half-steps. Only by uncompromisingly restoring America's most precious values will the United States resume its role as a nation that stands for decency, justice and the rule of law.


Anthony D. Romero is the Executive Director of the American Civil Liberties Union.

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