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Catherine Lotrionte on closing Guantanamo

Dr. Catherine Lotrionte

Dr. Catherine Lotrionte

My friend and Georgetown colleague,  Catherine Lotrionte, recently gave an interview to the Blue & Gray discussing the prospects of closing the U.S. detention center in Guantanamo Bay.  The complete interview follows:

Q. Do you think shutting the Guantanamo detention facility down was inevitable, regardless of who won the election?

A. Because of the international pushback and outcry about the allegations of abuse that occurred, I think it was inevitable it had to close at some point. I think any president would have faced the same outrage internationally; peer pressure, if you will, from other heads of state — including from some of our close allies, to do something about what had become a stain on our reputation.

President Obama and his advisers are taking one particular step toward minimizing this negative stain on the United States’ image. He is closing that system down completely, not just the location, but also the military commissions. That, I don’t think, was inevitable. There were other options.

Q. What were those other options?

A. One, which I don’t think would’ve happened, would be to keep Guantanamo as is and have the prisoners face military commissions there. Another option was to shut down the facility, move the prisoners outside of Guantanamo Bay and have them stand trial before military commissions elsewhere. Obama has ordered the ceasing of military commissions. There was one judge that pushed back and still wanted to hold the hearings, but it looks like everyone is complying with this order.

One option that has not gotten a lot of discussion, at least not in the media, is to bring these prisoners to a hybrid international-domestic court in The Hague.

Q. What are the problems with military commissions as you see it?

A. The world, and most of the United States, has lost all faith in the military commissions. The lawyers who have been to Guantanamo that I’ve talked to questioned the legitimacy and fairness of the rules that guided those commissions. Admission of hearsay evidence as well as detainees being denied access to lawyers and family are huge issues.

In our courts, hearsay would not be allowed. It’s accepted in military commissions. In our courts, the courts cannot be closed to the public, even if there is a discussion of classified information. Either that information will not be used, or it will be discussed in the open. In a military commission, you can shut the commissions down to outsiders, and they’ve done this. They keep witnesses and human rights organizations in different, soundproof rooms from the proceedings and simply turn off the sound.

Any information gotten based on torture would not be used based on our criminal code. But also, coercive measures shy of torture would most likely be inadmissible. So, you’d have a lot of evidence that could be brought into a military commission and has been, but would not be allowed in by a district court judge in this country.

The military commissions could’ve operated differently, but they didn’t so at this stage I think detainees should be brought to The Hague.

Q. Why do you think The Hague is preferable over trying suspects in U.S. courts?

A. The Hague is seen as a place of great legitimacy, as the birthplace of international law where other legitimate courts sit — the International Criminal Court, the International Court of Justice and the International War Crimes Tribunal. It has a very good image. Bringing trials there would remove concerns about lack of due process and would get rid of the United States’ problem, meaning Guantanamo Bay.

Q. How would you envision these trials in terms of what rules to use and how to prosecute suspects?

A. The Lockerbie trials are a precedent — bring those that should stand trial and try them based on domestic laws of where they come from. True, there were only two people on trial for the Pam Am bombings. We have 200-plus prisoners in Guantanamo, but more than 100 are Yemenis. So you could take the group of Yemenis and try them all under Yemeni law.

Q. Some legal experts suggest a special court to try the detainees instead. What are your thoughts on that?

A. This is referred to sometimes as a special terrorism court. I do not support the creation of a specialized court because I don’t think we need it. The international community is not accepting of specialized courts. The history of specialized courts is not one of high regard with human rights organizations or the international community at large.

The U.S. doesn’t have a long history of creating these specialized courts, and it’s for a good reason — we’re a democracy. The idea of creating these special courts with special rules comes with the reality that you’re creating a different set of rules to try these people. Where are the due rights and due process?

Q. Is there a historical basis to compare what is happening now in the legal system with anything in the past?

A. A lot of this is unprecedented, but the Supreme Court has stepped in on these matters. I would argue that Boumediene is one of the most important cases that the court has handed down. What the court did was set precedence for rights held by individuals the United States took in custody and then sought to try through military commissions. Even though Congress passed the Detainee Treatment Act (prohibiting cruel treatment, but limiting courts’ jurisdiction of enforcement), the Supreme Court said they were wrong. The Supreme Court has shown it will get involved in these matters. It was not going to let Congress or the president get rid of habeas corpus. The judicial branch will not allow those two branches to stop the rule of law overseas. What the Supreme Court is saying is you can’t ignore the rule of law when you want to, even if Congress and the president are acting together to erase it.

Q. What are the implications if detainees are tried in U.S. courts?

A. The concern right now from many members of Congress is what district would these people be brought to, and, if convicted, what prison would they be sent to? There’s a discussion about that on the Hill right now, and people are pointing fingers at each other. Some are telling Sen. Diane Feinstein (D-Calif.), ‘Why don’t we just redo Alcatraz and open it for terror suspects?’ because she supported closing Guantanamo.

People are worried about what will happen if a person is tried in their neighborhood and that neighborhood becomes the world center for people viewing that trial. What if a crazy person tries to kill the prisoner or use this stage as a place for martyrdom and blow up the court? For many Americans, the thought of trying a high-profile terrorist in their neighborhood, with the whole world watching, is concerning.

Q. Is deciding where and how to try terrorism suspects necessary before the Guantanamo facility closes for good?

A. Does Obama have to resolve every aspect of this? No. But if you close Guantanamo and don’t have a plan in place, you’ll have another problem. Part of the reason why you’re closing it is, people argue, detainees have been in custody for much longer than necessary. So if you’re just closing it and shipping detainees to a different location to wait, that’s not a good thing for the administration.

My advice to the administration is you’ve decided to close Guantanamo; whether or not everyone agrees with that, we need to move on. You need to make a decision as to what will be done with the prisoners within the year time frame given for closing Guantanamo. Maybe not every detail must be worked out, but detainees shouldn’t just be shipped off to wait again for what might be a trial someday, somewhere.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.