Closing Guantánamo: Challenges and Opportunities Faced by the Obama Administration

By Amy Miller

 

Closing the Guantánamo Bay naval base in Cuba this year will be anything but easy. Deciding what to do with the 245 detainees still held there and any such terrorists the U.S. may capture in the future is one of the thorniest legal challenges facing President Barack Obama’s administration today.

           

That’s why the Columbia Society of International Law (CSIL) and the Journal of Transnational Law at Columbia Law School chose to make the legal implications of shutting down the base the subject of a day-long conference hosted on March 30. Law school students organized the 35th Annual Wolfgang Friedmann Conference, titled “Closing Guantánamo: Challenges and Opportunities for the Obama Administration,” to examine what the U.S. can learn from the mistakes and accomplishments of other countries. The conference is named after the late Wolfgang Friedmann, a beloved professor at Columbia Law School, and is held annually in his memory to discuss timely issues of international law.

 

Professor James Crawford, Whewell Professor of International Law at the University of Cambridge, was honored during the event as this year’s recipient of the Wolfgang Friedmann Award for his contributions to international law. He was also a panelist, speaking about the lessons the U.S. can take from other states’ detention policies in the face of terrorism.

           

Not surprisingly, the most heated debate arose during the last panel of the day, “What should the U.S. do with the Guantánamo detainees?” moderated by Professor Matthew Waxman. Much of the discussion centered on whether terrorism suspects should be tried in federal court. The Bush administration had justified holding prisoners at Guantánamo by arguing that the federal court system couldn’t prosecute terrorism suspects effectively.

           

They should be tried in federal court, said Professor Hina Shamsi, staff attorney in the ACLU’s National Security Project and an adjunct professor of international human rights law at Columbia Law School. The detention policies under President George W. Bush that allowed prisoners to be held for months, even years, in secret custody without trial at Guantánamo were a political, moral, and policy failure, and they were illegal under international law, she said.

           

The Obama administration can’t look to the Bush policies as a standard or a starting point. Instead, it must “start with the rule of law,” Shamsi said. “If there’s evidence of wrongdoing, detainees should be charged in a federal court system. If there is no evidence, they should be released.” Steven Engel, a deputy assistant attorney general at the justice department during the Bush administration, countered that holding prisoners indefinitely was not an official policy. The administration’s detention policies were put in place over time, in response to immediate security threats after September 11, and they were legal, he said. “I think the decisions made then were quite reasonable,” Engel said.

           

James Benjamin and Richard Zabel, former federal prosecutors who are now partners at Akin Gump, discussed their study of how well federal courts prosecute terrorism cases. They found that the federal court system does successfully convict terrorism suspects, at a rate of about 90 percent. “That’s not to say it’s perfect and that’s not to say that it can work in every case,” Benjamin said, but they found false the idea that courts are too inflexible or categorically incapable of handling such trials. “It really does depend on the evidence.”

           

While the last panel on domestic policy produced most of the fireworks, much of the conference looked at the topic from a comparative or international perspective. The first panel asked what lessons the U.S. can learn from other countries’ detention policies in the face of terrorism. Other countries have “an awful lot to teach us: good, bad, and otherwise,” said Columbia Law School Professor Peter Rosenblum, who moderated the panel.

           

Professor Kieran McEvoy, director of the Institute of Criminology and Criminal Justice at Queens University, Belfast, talked about how the treatment of political prisoners in Northern Ireland has evolved over time. In the 1960s and 1970s, they were automatically imprisoned, and hunger strikes ensued. Today, the strategy of releasing political prisoners early is working. In fact, it’s reducing recidivism, he said.

           

The Indian military has had the authority for decades to retain political prisoners without trial, said Anil Kalhan, a law professor at Drexel University Earle Mack School of Law. Although some constraints have been placed on that authority over the years, “The Supreme Court and the High Court have tried to nibble away at the edges of this,” Kalhan said.

           

The laws of the Geneva Convention bind both the U.S. and the United Kingdom, said conference honoree Professor James Crawford of Cambridge University. So there’s little difference in how they can legally detain terrorism suspects. But the British government made a big mistake after September 11, he said. It relied on immigration laws to deport suspected terrorists. Meanwhile, British nationals who posed similar security threats were allowed to go free. “They mistakenly believed this was a foreign problem and it wasn’t,” Crawford said.

           

James O’Brien, a special envoy for the Balkans to former U.S. Secretary of State Madeleine Albright, spoke to about 60 students, diplomats, and alumni at a luncheon. He said convicting war criminals at military tribunals helped peace negotiations in the Balkans. “The tribunal became a vital ally in removing spoilers from the peace process,” O’Brian said.

           

A final panel, “Geneva 2.0,” moderated by Professor Sarah Cleveland, asked if the U.S. should rethink how international laws deals with the rights of detainees suspected of terrorism. International human rights laws do permit the detention of enemy combatants, said Gabor Rona, International Legal Director of Human Rights First. But the laws of armed conflict don’t govern the detention of civilians, which creates problems if the U.S. detains a suspect who wasn’t captured on the battlefield or in a country where war has not been declared.

           

Derek Jinks, a professor at the University of Texas School of Law, however took a different view, arguing that there are few international regulations governing the detention of terrorism suspects. “What conclusion should we draw from the absence of rules?” he asks.      
     

The real problem is that if there was ever an arcane area of law, “it is the law of armed conflict,” says Eugene Fidell, a lecturer at Yale Law School and president of the National Institute of Military Justice. And the U.S. Supreme Court has yet to weigh in on the subject to provide meaningful clarity, he said.

           

In any case, it’s clear that President Obama has abandoned the stand taken by President Bush that a president can take any military action he chooses, and is not bound by international law, or the actions of Congress, said David Golove, a professor at New York University School of Law.

Law students made up much of the audience at the conference, and for good reason, said second-year law student Yael Fischer. Subjects like the closing of Guantánamo Bay reveal problems in the legal system that don’t get discussed often in law school classes. “The law does have gaps,” Fischer said. “It’s great to be reminded of that and to contemplate how to fill those gaps.” The event was organized by conference co-chairs Paul B. Simon '10 and Jantira Supawong '10. The co-presidents of the organization are Karin Reiss '10 and Eleanor Carr '10.

 

Amy Miller is a reporter for Corporate Counsel and The American Lawyer magazines.