There is perhaps no organization in Washington with a closer relationship to the White House than the Center for American Progress. Its President and CEO, John Podesta, co-chaired President Obama’s transition team, and dozens of former staffers have taken positions in the executive branch. When they put out a report, you can at least guess at the White House going in a similar direction.
That’s the context for their new report on Guantanamo, written by Ken Gude. In it, Gude calls for a push back of the deadline for closing the military prison to July 2010, citing obstacles to the schedule and various mistakes from the Administration to get to the initial date of January 22, 2010, which Obama promised on his second day in office.
The Administration, particularly Attorney General Eric Holder, has been intimating for several weeks that they might not be able to make the deadline, so this CAP report is not huge news. And meeting the deadline now, with over 200 detainees still at Guantanamo, is unfortunately unlikely.
What’s more important – and more troubling – are some of the additional recommendations in the report beyond establishing a new deadline. Gude calls for the government to prosecute suspected 9/11 conspirators and others accused of terrorism in federal courts, with the military commissions process limited only to “battlefield crimes.” He wants to see detention only for those captured in combat zones on the battlefield, rather than using military prisons as a catch-all for any detainee the United States would like to hold. But then there’s this:
Incarcerate detainees convicted in U.S. criminal courts in maximum-security U.S. prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan. U.S. maximum and supermaximum security prisons currently hold hundreds of convicted terrorists and are perfectly capable of safely imprisoning Guantanamo detainees. Sending Afghan battlefield detainees back to Afghanistan makes logical sense and would eliminate the need to return to Congress for additional funding to close Guantanamo.
Gude makes some bright lines between “battlefield” and “non-battlefield” that are not at all clear, and which current or future executive branches could easily abuse. In fact, it’s the current position of the US government that they can detain Al Qaeda or Taliban operatives seized anywhere in the world. But beyond that, Gude essentially gives clearance to the Obama Administration to use Bagram as a stand-in for Guantanamo, a space of indefinite detention without the rights and practices of the criminal justice system. Daphne Eviatar writes:
While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.
Gude says in the report that the Administration is “making good progress on procedures at Bagram,” though more is needed. Similarly, he trashes the military commissions process as too tainted by the failure of the Bush years, while still recommending its use in battlefield cases.
By contrast, Anthony Romero of the ACLU argued strongly not only for closing Guantanamo, but for ending the policies practices there.
It is vitally important that each remaining case be handled correctly and according to the rule of law. No one should be tried in the illegitimate military commissions, a second class system of justice that will never shed the shameful legacy of Guantánamo. Detainees against whom there is enough evidence of criminal activity should be charged and prosecuted in federal courts. Detainees against whom there is not adequate evidence should be repatriated to their home countries whenever possible, in accordance with international law. Finally, detainees who can’t be returned to their home countries because they could be tortured there should be resettled in other countries — including the U.S. After 7 1/2 years, no Guantánamo detainee should be indefinitely detained without charge or trial. In fact, the Obama administration’s decision to continue its predecessor’s indefinite detention policy has also contributed to the delay in closing Guantánamo; if it were charging or transferring detainees to other countries as it should be, it could be a lot further along in the process.
In another interesting proposal in the CAP report, Gude calls on the President to not seek the death penalty for any of the suspected 9/11 plotters, saying “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom.”
CAP is closed today for Veteran’s Day and unable to offer a comment.