Sunday, January 11th, marked the seventh year that prisoners have been detained at Guantánamo. President-Elect Obama has promised that there will be no eighth anniversary. But judging from the level of chatter among the pundits this week, you might think that closing the base will require an army of law professors and philosophers to first be locked in the basement of the White House until they resolve every paradox posed by the former administration's policy innovations -- things like the introduction of torture as a means of gathering evidence, and presidential fiat as a substitute for judicial review -- and rework them until something is left that we can still use. Our new president would be better off simply discarding the last seven years of legal novelties in favor of the traditional model of detaining only those men who can and should be charged and tried for some criminal offense. The vast majority of people at Guantánamo cannot.
There are three categories of detainees left at Guantánamo. The first, and largest group, are the people who should never have been picked up in the first place, and who should simply be sent home as soon as possible.
The vast majority of Guantánamo prisoners were (and are) civilians detained in civilian circumstances, by hungry villagers, rival warlords, or corrupt Pakistani policemen and turned over for bounties amounting to a decade or more of wages in those countries. Unsurprisingly, hundreds were picked up by mistake, and unsurprisingly, hundreds have been sent home already -- around 520 in total of the 779 men held prisoner at the base since January 11, 2002.
They were not, by and large, people fighting on the front lines of a battlefield -- or even anything remotely close to that. The big factual lie underlying all the government's most sophisticated legal arguments has been that these are military detainees being held for the duration of hostilities according to traditional rules of the law of armed combat. On the facts -- even their version of the facts -- that's nonsense. The largest study of the detainees, based on the military's own records, showed that all of 4% were picked up in anything resembling a battlefield. Over 330 detainees were picked up in Pakistan, more than in any other country; none of them were "captured on the battlefield." I can't think of a single one of our active clients who was.
Many of the detainees were living peacefully in Afghanistan or Pakistan after fleeing from countries with far worse human rights records, particularly against religious Muslims -- for instance, Libya, Tunisia, Syria, or China. They constitute a second group: those who we should send home but cannot, because they are citizens of countries that routinely engage in torture and other abuses. This group -- Guantánamo's refugees -- amounts to about 60 of the remaining 250 detainees. The effort to close Guantánamo will never be complete until President Obama finds new homes for these men. That will require a multilateral diplomatic effort involving all the countries (mostly but not exclusively European) that traditionally accept asylum seekers. One key step in encouraging those countries to help clean up this mess of our own making will be to take some of them in ourselves; the seventeen Uighurs, refugees from Chinese oppression long cleared for release by the military, are perfect candidates.
What about the few detainees who are alleged to have participated in al Qaeda or international terrorism? The first thing to know about them is that their number is small -- perhaps two dozen. The group already charged before military commissions is even smaller. President Obama should drop charges under that dysfunctional system -- a system set up to launder the fruits of interrogations under torture -- and, after review, recharge the most serious cases in the federal criminal courts, which have proved able to efficiently and fairly try al Qaeda terrorism suspects over the last fifteen years.
In a recent TV interview, President-Elect Obama worried about the cases where the only evidence was obtained through torture. In the real world, those cases are likely to be very rare: if the government has the facts right, there will usually be many other sources for them besides dubious confessions. In theory, one could imagine a case where there may be no evidence against a military commission defendant that was not procured through torture. But every civilized legal system in the world rejects evidence procured by torture not only because accepting it would be immoral, but also because it is unreliable. If there is no evidence other than torture evidence behind an accusation, then there is no trustworthy evidence, period.
None of this will save some of the accused from trial. Khalid Sheikh Mohammed has a pending indictment against him in the Southern District of New York and freely admitted to planning 9/11 (to Al Jazeera) before he was ever captured or tortured by the United States. Charged in a real, tested-and-true court system -- rather than the slow-motion farce of the military commissions, which have allowed him to portray himself as a warrior rather than a criminal and those he killed as collateral casualties rather than murder victims -- he may yet see justice in our lifetimes.
An executive order on President Obama's first day in office announcing his aspirations for closing Guantánamo before the year is out will be a welcome development. But if our new president really wants to close the place soon, his mantra should be "Charge or Release." Moving the serious criminal cases to the criminal courts can happen almost immediately. Sending home the easy cases should not take long either -- assuming that Obama will have better luck than Bush with Yemen, where a diplomatic impasse has meant that roughly 85% of the 113 Yemeni detainees ever brought to Guantánamo still remain there, by far the largest group by country. But the real work of closing Guantánamo will be the multilateral diplomatic effort to find new homes for Guantánamo's refugees. The new administration would be well-served to focus on the hard diplomatic work required to meet those challenges, and not on the misguided theoreticians suggesting that the legal system inherited and vandalized by President Bush was unfit to the task of keeping us safe and free.