After Guantanamo, Charge Them or Release Them

[Jacaylbaro]

After meeting many men in Guantanamo, and breaking bread with my former clients after their release, I remain baffled by the Administration's continuing uncertainty about how to close the notorious prison facility. Have we as a people still not recognized in 2009 our gross mistakes at Guantanamo? Are we actually willing to squander the good will extended to the new Administration by perpetuating fear-mongering and continuing to suggest the need for "new" detention authorities? I hope, for the sake of our country, that the answer to these questions is a firm "no."

 

The men who remain imprisoned at Guantanamo are there now more because of nationality than because of any evaluation of their actual danger to the United States. Citizens of powerful European countries were released long ago. My former European client went on to pursue his college degree and marry. But men from less influential countries languish because of political disputes. Our client Mohammed Barre, for instance, is from Somaliland, an area in Somalia that claims status as an independent country and thus has no official diplomatic ties to the United States. And citizens of countries that routinely torture have been eligible for release--some for years like our client Abdul Ra'ouf from Libya--but have nowhere safe to return. These men should not be stranded in the custody of the United States one more day because of their nationality and because of mistakes, bad intelligence, and bad policy. We cannot afford to continue the mistakes of the Bush Administration and inflame Guantanamo as a symbol for anti-American passions.

 

What should we do with the hundreds remaining at Guantanamo? The quandary only appears complex because of how far we have strayed from the rule of law. The answer is simple. First, President Obama should rapidly commit to either charge individuals or release them. Second, the new administration should ensure the speedy repatriation of those detainees who can be safely returned home. Third, the government should grant refuge in the United States, or secure safe haven in other countries, for those individuals who would be at risk of torture or persecution if forcibly returned home.

 

The government can prosecute the tiny handful of men who have committed crimes. Plain old criminal trials will suffice. No need to replicate the circus to glorify criminals as "warriors" that has occurred at the military commissions at Guantanamo.

 

Our client Mohammed al Qahtani too often has been flung forth as an (unexplained) example of one so threatening to this nation's existence that we are contemplating the creation of another novel detention system for those "too dangerous to release, but too tortured to prosecute." We'll set aside, for now, this indication of how far our legal thinking has fallen from the days when we would never engage in extra-legal acrobatics to imprison someone after such outrageous torture. I would only caution against many of the popular assumptions about Mr. al Qahtani's guilt and potential dangerousness. Many aspects of the investigation, his interrogations, and the efforts to prosecute him involved errors at best, illegality at worst. After working directly with him since 2005, I can attest that he is not an extremist. He does not espouse anti-American or radical views. He is, however, quite damaged from what has happened to him. It is difficult to reconcile the popular assessment of his potential "dangerousness" with this man whom I have met many times over four years. We should not let a tortured, destroyed man become a mythical beast of our dreams that drives us to abandon who we are.

 

Now is the moment to restore the rule of law and move beyond our nation's past mistakes. Charge or release the men still held; there is no third way.

 

I, for one, look forward to the day when our mistake in Guantanamo settles in its rightful place in history as an egregious incident of racism and xenophobia aside the internment of Japanese-Americans, the slavery and segregation of African-Americans, and the oppression of Native Americans.

 

 

Gitanjali Gutierrez