This short piece from the Economist – styled as an email to Barack Obama – is worth a read:
Your promise to close Guantánamo is popular. Including a clear announcement on this in your inaugural will make for great headlines. But if you have to give a firm date for closure, kick the can at least a year down the road. Remember: W. wanted to close the place too, but disposing of the 260-odd (in every sense) inmates still incarcerated there won’t be easy.
A few dozen are small fish—not to mention innocents—who we could easily send home. But there are some whose governments don’t want them, and others (eg, those Chinese Uighurs) whom their governments might torture or execute. International law says you can’t repatriate them. We’ll ask friendly countries to take a few, but you will end up having to let most go free in the United States. Some might well return to the battlefield after all we’ve done to them. But as General Barry McCaffrey has said (we’ll keep the quote handy), it’s going to be cheaper and cleaner to kill them in combat than sit on them for 15 years.
Then there are those 80 or so really hard men. President Bush wanted to try them, and could never get the law right. So now you have to deal with them. Khalid Sheikh Mohammad has “confessed” he was the brains behind 9/11. God knows what the Pakistanis or the Agency did to him in prison. But we can’t just let him go, and we can’t just let him rot, so you have to give him and his accomplices their day in court. The first big question for you is: what kind of court? You don’t like Bush’s military commissions. But if you set up special security courts with special, meaning laxer, standards of procedure and evidence, they will be called kangaroo courts too. And if you opt for regular criminal trials or courts-martial you run the risk that they will throw out evidence extracted by waterboard. Dare you let a 9/11 mastermind walk free?
Worse yet, there’s a group the Agency is sure are dedicated terrorists but on whom we have nothing that can stand up in any sort of court. The human-rights purists say you must bite the bullet and set these unconvictables free in America. But if you follow their advice it won’t just be Republicans who will say you are putting the republic in danger. You’d theoretically have a let-out if you could let these guys go and keep them under surveillance. But the Feds claim they can’t guarantee fail-safe, indefinite 24-hour monitoring of a group this size. Can we afford to take that risk?
Safer would be to move them to the mainland, where they would be held under some kind of preventive detention devised by your legal team. We can call this “temporary”, but our base will bleat that you have closed Guantánamo only by creating a new prison where America continues to detain people convicted of no crime. And they’ll have a point. Over to you.