The Magazine

What to Do About the Gitmo Detainees

The ball is in Congress's court.

Feb 2, 2009, Vol. 14, No. 19 • By STEPHANIE HESSLER
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With that in mind, there are at least three provisions that should be included to help protect our national security. First, our troops on the battlefield must not be hauled into court by unlawful enemy combatants. The rules could instruct that military personnel generally do not have to appear as witnesses in these proceedings, perhaps submitting affidavits in lieu of live testimony. Second, just as in detainee trials, classified information must be protected from falling into the hands of enemies. Rules governing habeas proceedings could resemble those for detainee prosecutions and provide for ex parte submission of classified information. Third, unlawful enemy combatants held outside the United States must not be permitted to enter our borders to appear at habeas proceedings. Mukasey warned of the "extraordinary" security effort required to transport a detainee to the United States. Rules could provide that an enemy combatant could attend the habeas proceeding and take the stand only via video link. Finally, if Congress sets up a national security court for detainee trials, it could provide that court with exclusive jurisdiction over detention proceedings.


Even releasing detainees who are no longer deemed to be a threat may prove easier said than done. For one thing, it may be difficult to discern who is no longer dangerous. According to the Pentagon, more than 60 former detainees have resumed their terrorist mission. For example, Abdul Ghaffar, a former Guantánamo detainee, returned to Afghanistan and allegedly became a leader of the Taliban. Similarly, after his release, Abdullah Mehsud plotted the kidnapping of two Chinese engineers in Pakistan. Yet another example, Mohamed Yusif Yaqub, reportedly organized a jailbreak in Afghanistan, as well as a nearly successful capture of the town of Spin Boldak. And these are men the United States determined were not a major threat.

In addition, for each detainee cleared for release, the Obama administration will have to consider carefully whether the receiving country is willing and able to prevent the individual from taking up arms. Some 40 percent of remaining Guantánamo detainees are Yemeni, and Yemen has a poor record in this regard. Three former detainees released to Yemen have been identified as the perpetrators of the bombing of the U.S. embassy there last September that killed at least 16 people. Although the government of Yemen has promised to institute a rehabilitation program for former detainees, a senior U.S. official expressed "significant concerns" about its capacity to follow through.

Worse yet, some detainees may not be accepted by any country. The new administration can either continue to detain these people while seeking an accommodating nation or release them into the United States. One district judge has already ordered 17 detainees from Guantánamo brought to the United States and released into our nation's capital. The government strenuously objected, arguing that detainee release into the United States "squarely conflicts with the immigration laws." These detainees have not yet been released in Washington only because the issue is on appeal.

Although President Obama has not specified his plans for detainees who cannot be returned to another country, it seems unlikely he will choose to release them within our borders. Secretary Gates recently called on Congress to pass a law providing "that if somebody is released from Guantánamo they cannot seek asylum in the United States."

According to the Bush Justice Department, the Immigration and Nationality Act already prohibits a court from ordering the release into the United States of an alien Guantánamo detainee. Moreover, our immigration laws bar entry to anyone who "has received military-type training .  .  . from or on behalf of any organization that, at the time the training was received, was a terrorist organization." This provision could cover many of the current detainees.

Despite these statutes, certain judges need further instruction on this point. Congress could revise the immigration laws, as Gates suggested, to deny Guantánamo detainees asylum in the United States. The bill could perhaps allow them to apply for entry to America if no accepting country had been found within a certain amount of time.

To conclude: To close Guantánamo, there must be comprehensive legislation covering detainee trials, continued detention, and release. A few days after the election, the New York Times ran a full-page ACLU ad urging Obama to close Guantánamo "on day one, with the stroke of a pen." If only reality were as simple as rhetoric.

Stephanie Hessler is a former constitutional lawyer for the Senate Judiciary Committee.