Q&A With Kenneth Roth on Closing Guantánamo

Michael Herb: Will closing Guantánamo really solve more problems than it is currently creating? Why is it necessary to close a prison that effectively does its job in keeping those who threaten the United States off the battlefield and out of the country?

Doug Bedell: What will moving prisoners actually solve? Are there estimates on the additional costs that will be incurred to transfer and house the prisoners?

Nikhil Jones: What does the planned closing mean for the current detainees at Guantánamo?

A: Closing Guantánamo is not simply about shutting a detention facility. It is about ending the use of long-term detention without trial -- as well as torture and other forms of coercive interrogation. Such abuse has lost the United States the moral high ground in the fight against terrorism. This is dangerous: it discourages the international cooperation that is essential for disrupting clandestine terrorist networks while providing recruiters for al Qaeda and its ilk with a bonanza of material to build rage among the next generation of terrorists.  

The current Guantánamo detainees should be prosecuted -- in regular courts, not substandard military commissions -- or released. Of the roughly 240 detainees, even the Bush administration found that some 50 posed no danger; the only sticking point was finding a country to accept them, since they risked torture or worse if returned to their countries of origin. Up to 100 others are Yemenis whom the Bush administration was also negotiating to return to Yemen or neighboring Saudi Arabia if the proper security guarantees could be put in place. The Obama administration is continuing efforts to transfer these detainees.

That leaves some 80 to 100 more difficult cases. Those who actually plotted terrorist activity should be prosecuted in regular federal courts, which have a long history of successfully prosecuting terrorism cases -- far more successful than the compromised military commissions. To convict someone of conspiracy to commit terrorism takes very little: proof of a criminal agreement between two or more people and a single step, no matter how innocuous, to advance the plot. Those convicted can be held in such detention facilities as the super-maximum security prison in Florence, Colorado, where big-time drug traffickers and other extraordinarily dangerous people are kept and from which no one has ever escaped.  

However, if the U.S. government cannot muster even that modest level of proof, it should release the detainees, who have been held without trial long enough. That involves some risk, but the world is full of dangerous young men, only a tiny fraction of whom are in Guantánamo. The sense of injustice caused by continuing Guantánamo is likely to generate far more terrorists than the handful who otherwise would continue to be held without trial were Guantánamo to continue in operation. 

Vince Larson: Has Obama essentially created a loophole for continuing to hold some detainees without trial by suggesting that there is a group of detainees who cannot be prosecuted but continue to pose a danger to the United States? Will such a policy create a Guantánamo by another name?

A: Yes and yes. Obama believes there are some detainees at Guantánamo who cannot be convicted but are too dangerous to release. Without seeing the files, we cannot know how big a problem that is. But to continue to detain them without trial would be to maintain the essence of Guantánamo, even if their place of detention were to be moved onshore. As noted above, their detention is unlikely to make us safer, since there is a good chance that it would generate more terrorists than it disables.  

Tom: The courts have held that the writ of habeas corpus, which prevents illegal detention, extends to Guantánamo. Does it not then follow that the Suspension Clause, which allows for habeas corpus to be suspended in the case of invasion or threat to public safety, is also applicable in Guantánamo?

A: The Suspension Clause of the U.S. Constitution says that the writ of habeas corpus cannot be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it." Because there has been no rebellion or invasion of the United States, there are no grounds for suspending habeas corpus in Guantánamo or anywhere else.

Greg R. Lawson: Even with the closure of Guantánamo, the United States is likely to continue practicing "extraordinary rendition" for those who are perceived to be high-value targets. Will this actually result in worse outcomes for those captured than simply leaving Guantánamo open?

Also, do you agree that despite some symbolic gestures from the Obama administration, the president is maintaining the majority of the detainee policies from George W. Bush's second term?