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From Guantanamo to Accountability and Beyond

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Last month in an interview on CBS 60 Minutes, President-elect Obama made known his intention to close the Guantanamo detention facility. The projected closure raises a plethora of issues, chief among them accountability, the transfer of detainees, and the challenges newly released detainees face upon re-entry into their country of origin or third countries.

The standard for dealing with Guantanamo was set from the very beginning with the establishment of the military commissions, as outlined in Jonathan Mahler's The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. The 'military order' on November 13, 2001 enumerated a few of the rules: "the president himself would choose whom to try; hearsay evidence would be admissible; a majority of votes would be adequate for a guilty verdict; the jurisdiction of the war crimes court would be exclusive, meaning that there would be no appeals to the U.S. courts; and sentences would include life in prison and death."

At one point in time, 600-plus detainees were reportedly being held at Guantanamo. The fate of Guantanamo detainees has been a mixed bag. Feroz Abbasi and Moazzam Bagg, two defendants who happened to be British citizens, were never tried and were eventually released from Guantanamo in January 2005. Australian David Hicks was charged with conspiracy to commit war crimes, attempted murder and aiding the enemy. Salim Hamdan was designated for trial, put in pre-commission confinement (otherwise referred to as "Camp Echo") and officially charged on July 13, 2004. According to reports by the Department of Defense, 255 detainees remain at Guantanamo as of October 2008, and the U.S. government has charged only 23 with war crimes. In June 2008, the Supreme Court ruled in Boumediene v. Bush that detainees had the right to access U.S. courts to review the legal basis of their ongoing confinement. To date, no full habeas has been held.

Last week, I attended a panel discussion, Obama's Dilemma: Guantanamo and its Aftermath hosted by the Open Society Institute. One of the panelists was Eric Stover, Faculty Director of the Human Rights Center at University of California, Berkeley; another panelist was Laurel Fletcher, Director of the International Human Rights Law Clinic . The two panelists discussed the findings of a joint study, Guantanamo and its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Former Detainees. They felt compelled to undertake the study since no one had looked at the plight of detainees from the time of their apprehension, during the course of their detention, and subsequent reintegration into society. For the study, they conducted anonymous interviews of sixty-two detainees from nine countries, talked to eighteen lawyers who had clients in detention, various policy makers, government officials and representatives of nongovernmental organizations.

The report highlighted various problems which newly released detainees face upon reentering their country of origin. First, there is the 'Guantanamo stigma' that comes as a result of being detained. This is particularly onerous when you consider that none of those yet released from Guantanamo has been convicted or punished for a crime by the U. S. government, but their names have not been cleared. Second, many of the detainees face difficulty finding employment, which is compounded by the fact that many of their families went into debt after the head of household was detained. Third, many can't afford the medication for psychological or mental problems -- such as mood swings, outburst of anger and withdrawal from family members -- which they developed during detention.

There have been renewed calls for the establishment of a Commission of Inquiry, independent and nonpartisan, not just for Guantanamo, but also for Iraq and Afghanistan. Panelist Laurel Fletcher thinks the commission should have subpoena powers and access to documents so we can know what went wrong. According to Ms. Fletcher, "We need to disincentivize illegal activity and to restore U.S. prestige." This notion was endorsed by fellow panelist, Eric Stover, who felt that since the U.S. has promoted accountability overseas, they must now do so on the domestic front. Their report recommends that the work of the commission must not be undercut by the issuance of pardons, amnesties or other measures that would protect those culpable from accountability.

Much speculation abounds as to whether President Bush will grant pardons to administration officials or individuals in the military chain of command who either ordered or authorized actions undertaken as part of the ongoing 'war on terror.' Traditionally, pardons were issued to individuals subjected to inherently unfair criminal processes, or to groups involved in acts of protest as President Lincoln did in the aftermath of the Civil War. Pardons were not granted to those guilty of what today would be deemed war crimes. Carolyn Patty Blum, of the International Center for Transitional Justice , has written a policy brief on pardons . According to Ms. Blum, if President Bush grants pre-emptive pardons, "For the first time in U.S. history, some of the potentially pardonable acts would include violations of international law. No previous president has enacted such a broad prospective pardon for members of his own administration or for military forces ... Such a broad pardon would act as a direct manifestation of impunity and a disincentive to future accountability."