Wednesday, May 2, 2007

Closing "Guantánamo" as well as Guantánamo

The same day that the U.S. Supreme Court declined pretrial review of the military commissions expected to try detainees Omar Khadr and Salim Ahmed Hamdan, U.S. Sen. Dianne Feinstein (D-Cal.) (below) introduced a bill giving President George W. Bush 1 year to close Guantánamo' s detention camp. Detainees would face 1 of 5 fates; that is, being:
transferred to a military or civilian detention facility in the United States, charged with a violation of United States or international law and tried in an Article III court or military legal proceeding before a regularly-constituted court;
transferred to a military or civilian detention facility in the United States without being charged with a violation of law if the detainee may be held as an enemy combatant or detained pursuant to other legal authority as Congress may authorize;
transferred to an international tribunal operating under the authority of the United Nations with jurisdiction to hold trials of such individuals;
transferred to their country of citizenship or a different country for further legal process, provided that such country provides adequate assurances that the individual will not be subject to torture or cruel, inhuman, or degrading treatment; or
released from any further detention.
Surely it would be a step in the right direction for the United States to quit the Guantánamo camp -- a place where about 700 non-Americans (and, for a while, 1 American, Yaser Esam Hamdi) have endured detention in the course of the last 5-1/2 years, where some, like Khadr, were children, where he and many others say they've suffered abuse, where detainees reportedly were on hunger strike as recently as last month. Feinstein's bill also deserves praise for suggesting that a U.N. tribunal or another country's courts might handle some cases, as long as they adhere to certain standards. Yet the text raises some concerns:
1st, "military legal proceeding before a regularly-constituted court" will have to mean a court that adheres to the stringent standards contemplated by the majority in Hamdan v. Rumsfeld, and not a newly concocted tribunal that brings stateside unfair procedures found in the Military Commissions Act, or MCA; 2d, "torture or cruel, inhuman, or degrading treatment" will have to encompass the full meaning of those terms under international human rights law, and not the ghost of that meaning set forth in the MCA; 3d, the notion that there may be "legal authority" for detention without charge inside the United States will require explanation and justification. 4th and last, aspects of Guantánamo that have migrated also will have to come to an end -- any interrogation, anywhere, that violates McCain Amendment standards; renditions and secret sites that appear to continue, in Africa and elsewhere; and detention without charge in places like Bagram, Afghanistan (on this, see too the post by our colleague Marty Lederman at Balkinization).
To end detention at Guantánamo Bay, Cuba, without ending all practices that the word "Guantánamo" has come to symbolize, would be but a small step toward solving a large, and global, problem.

1 comment:

Diane Marie Amann said...

See also "Historians Raise Concern about Possible Destruction of Guantanamo Records,"
at today's Legal History Blog,