What to do with „enemy combatants“ is a million dollars question

It is not so easy to close Gitmo.

Questions:

1. President Obama decided to close the detainment facility at Guantanamo Bay. The critics say it was a premature decision despite the fact that new administration has one year to solve all the problems. What precisely is to be solved during this time? What is the biggest challenge of all and why?

2. Who are the people held at Gitmo? Are they the worst of the worst as President Bush used to say or are they just innocent victims who were unlucky enough to be at the wrong place in the wrong time?

3. What could have the US done with the people, described as enemy combatants at the beginning of war on terror? Is there a legal way in the international law, how to deal with such captives?

4. If we call it war on terror or not, dealing with terrorism is not over yet and the US will continue to fight non-state actors at least in Afghanistan. Is there some plan or idea, how to deal with so called enemy combatants in the future?

Answers:

Geoffrey Corn, Associate Professor of Law, South Texas College of Law

1. The biggest challenge is deciding how to deal with these detainees in the long run. Human Rights groups have always objected to the concept of “preventive detention” based on an assertion of war time legal authority. They say this is not a war, but a law enforcement endeavor, and therefore it is wholly invalid to treat these people as “enemy combatants” for detention purposes. Obama will have to decide if he agrees with this law enforcement theory, or whether he wants to continue to assert that some people who operate for al Qaeda are modern day “enemy warriors” subject to preventive detention (like a prisoner of war without all the rights).

This is actually the issue before the Supreme Court in a case called Al Marri. Watch that case closely, because it is the first time the Supreme Court will rule on whether preventive wartime detention authority can properly be extended to alleged al Qaeda operatives, even when arrested in the U.S.  If the Court endorses that authority, I suspect Obama will continue to assert it for those detainees we can’t effectively prosecute or return to their home countries.

One additional issue is how would we prosecute these people and for what offenses?  The theory to date has been that they have committed “war crimes” and can be tried by military courts.  If Obama rejects the “wartime”theory, he should not be able to use military courts, and will have to transfer all these detainees to civilian courts for trial. That will be very challenging, so it is another reason why I doubt he will adopt the “just law enforcement” theory.

2.  The truth is that GTMO has been closing since the day it opened! By that I meant that the US has been releasing people from the very beginning. Thanks to the Supreme Court, President Bush was forced to set up status review tribunals, and they have concluded that many of the so called “bad” people were really not so bad, and have released them. I think what this means is that most of those currently in detention are probably there for good cause. And certainly we do have some of the “worst of the worst”.  Others (most) are there because they fought for the Taliban in Afghanistan and we fear they will just go back to the fight. I doubt Obama will allow them to be released – he does not want to learn a month later than American or coalition soldiers died at the hands of one of these detainees.

3. This is the million dollar question, and there is just no clear answer. It all turns on whether it is legitimate to characterize the struggle against al Qaeda as an armed conflict. If so, then authority related to “war” is invoked, including the authority to detain captured enemy operatives for the duration of the conflict and to punish them for war crimes.  If not, then international human rights law protects them from arbitrary detention, meaning that the US should have adopted a “prosecute or release” approach to them. The Supreme Court has answered some of this, at least for the U.S. It has essentially endorsed the idea that we are in  an armed conflict with al Qaeda (Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld), but has also made it clear that IF the US invokes the law of war as a source of authority, it must comply with the humanitarian rules of that same law, which require certain protections for detainees. But what they have never decided, and what is at the heart of the Al Marri case, is how do we defined an “enemy combatant” in this unusual type of “war”? Al Marri was a graduate student in the US when he was arrested.  The government asserts he was planning to build a bomb.  Does that make him the same as Hamdi – an enemy fighter captured in Afghanistan after carrying a Kalashnikov rifle and fighting against US and coalition forces? This is the real flashpoint issue right now, and until it is resolved the closing of GTMO is really just symbolic, because it is the detention based on this theory that is really what bothers human rights experts about GTMO.

4. I don’t know about plan.  I do think that you can expect the Obama administration to adopt a much clearer and limited definition of enemy combatant, and to ensure that there is robust judicial review available for detainees to challenge that status.

Watch the Al Marri case. If Obama stops that case, it is a pretty good indicator he is moving away from the preventive detention model.  If he lets it go to judgment, it is an indicator he wants the Supreme Court to help him by providing a strong legal basis for how to deal with these detainees.

Matthew Waxman, Associate Professor, Columbia Law School

1. The biggest issue is not whether to close Guantanamo but how to do it, especially the question of what legal process to use to adjudicate individual cases. This is an issue not only for the 250 individuals at Guantanamo but for future terrorism suspects the United States and its allies might capture in the future.

2. Some of the detainees at Guantanamo, including the key planners of the 9/11 attacks, are extremely dangerous.  Others, however, should not have been brought to Guantanamo in the first place, either because they were not properly captured as enemy combatants or because they were not so dangerous to warrant long-term detention there.

3. The United States made a legal and strategic error in not treating detainees in accordance with Geneva Convention protections and in failing to set up rigorous adjudication processes much earlier.

4. This is the bigger challenge than closing Guantanamo for the new President: how to establish a durable legal framework for handling terrorism suspects deep into the future.

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