The U.S. Must Not Repeat the Guantanamo Detention Mistakes

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By Jack Cloonan and Sarah Mendelson
Sunday, November 30, 2008

Among Barack Obama's many campaign promises, the one whose fulfillment is anticipated most around the world is the closing of the U.S. detention facility at Guantanamo Bay, Cuba. Not surprisingly, public debate has begun on how to extract the United States from this legal and security quagmire. Sound recommendations include the need for a fresh review of all detainee files followed by a determination of who can be released and who must be brought to justice.

The debate unfortunately includes murky, fearful claims of a "third category": individuals who have not committed crimes but are perceived as "too dangerous to release." Some observers -- including some who have written in The Post -- contend that the Obama administration ought to establish yet another system of detention to hold such individuals indefinitely without charge. This recommendation strikes us as exactly what is done by countries not governed by the rule of law, and it is too similar to the Bush administration policies that got us into this predicament. Our current legal system works, and we should use it.

All along, a primary objection to Guantanamo has been its institutionalization of detention without charge. To propose a new scheme of detention as part of the policy solution to closing Guantanamo would perpetuate one of the most delegitimizing aspects of the facility. Such a system would be viewed as another departure from traditional U.S. values and would continue to serve as a recruitment tool for our enemies while alienating our friends and allies.

If the Obama administration listens to those pushing the fear factor, we risk essentially moving Guantanamo to the United States, not closing it. The new detention system would result in more years of legal challenges. While at the outset such a system might be intended only for those "very dangerous" people said to be impossible to prosecute or transfer, it could also soon be filled with those merely difficult to release or hard to prosecute, or with those who the government fears could win acquittal in court.

Instead, in his inaugural address, President Obama should announce a date for closure of Guantanamo as a detention facility and introduce a blue-ribbon panel of eminent Americans tapped to review all detainees' files. After years of an administration that called those detained "the worst of the worst" but released more than 500 of them, we need trusted figures to tell us exactly who is there. Obama should ask the panel to classify each detainee in one of two categories: those who should be prosecuted through the U.S. criminal justice system and those who should be released.

No "confessions" or information gleaned through torture will be admissible, so in some cases fresh evidence will need to be gathered. For some, such as Khalid Sheik Mohammed, there are standing indictments; for others, FBI agents and prosecutors will need to build cases -- as is often done with crimes that occurred overseas years before. Certainly there are legal challenges to overcome, and no one can promise that every person who is prosecuted will be put away forever. But consider the record of the criminal justice system in prosecuting international terrorism cases: Since 2001, a Human Rights First study found, our courts have dealt effectively with more than 100 such cases and have rendered 145 convictions.

For those who can be released, the Obama administration ought to forge a "grand bargain" to make sure they are moved as quickly as possible to countries where they are not at risk of torture. In recent days, senior European diplomats have indicated a willingness to help solve what they now view as a shared problem. As part of the bargain, the United States would need to accept some of those detainees who are released. (Most often mentioned are the Uighurs, who are at risk of persecution by Chinese authorities.) Finally, together with allies, the Obama administration should develop a plan to manage risks associated with the release of some detainees. This should include biometric and other technologies, as well as assessing reeducation and counseling programs, such as the one established by Saudi Arabia in 2004.

We are not challenging the need to hold in war-zone detention facilities those combatants who are picked up in battlefield settings, such as in Iraq and Afghanistan, assuming that the detentions and treatment take place in accordance with the laws of armed conflict. We are, however, saying that if the federal criminal justice system is used to handle future detainees, that system precludes the use of coercive interrogation techniques. We need to accommodate these prohibitions, and we need professionals who are trained in non-coercive techniques and can be deployed at a moment's notice.

The next administration should develop a program to create a cohort of interrogators with language skills, drawing lessons from experienced professionals to interview terrorism suspects. Never again, if our country is attacked, should we frantically engage in techniques that our enemies have used against our military personnel in wartime. We are better than that. We can do better than that. We must prepare to do better than that.

Jack Cloonan is a former FBI special agent. Sarah Mendelson is the author of the Center for Strategic and International Studies report "Closing Guantanamo: From Bumper Sticker to Blue Print."


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