Testimony before the U.S. Senate on July 24, 2013: Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications


Testimony before the U.S. Senate on July 24, 2013: Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications

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The detention facility at the US naval base in Guantánamo Bay has become a byword for injustice. In 2009, President Obama endorsed the use of military commissions to prosecute some of the detainees held at Guantánamo. These would not be the “flawed commissions of the last seven years,” he said, but revised commissions brought into line with “the rule of law.” In his recent speech President Obama again endorsed military commission trials as an option for prosecutions. This time, he appeared to make this endorsement consistent with closing the Guantánamo facility – though of course still not consistent with human rights – when he said that he had asked the Department of Defense to “designate a site in the United States where we can hold military commissions.” Military commission trials held in the USA will be as unacceptable as those held at Guantánamo, as would indefinite detentions if they were to be merely relocated rather than resolved. The military commission system does not comply with international fair trial standards. Moreover, imposition of the death penalty at such trials (the Obama administration is currently pursuing death sentences against six detainees facing trial by military commission) would violate international human rights law.

The UN Human Rights Committee has stated that the trial of civilians (anyone who is not a member of a state’s armed forces) by special or military courts must be strictly limited to exceptional and temporary cases where the government can show that resorting to such trials is “necessary and justified by objective and serious reasons,” and where “with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.” The US government cannot point to any such rationale. It can only point to domestic politics, the same domestic politics that the administration blames for the Guantánamo gridlock. The military commissions are not by any measure tribunals of demonstrably legitimate necessity, but creations of political choice.

In 2009, President Obama said that the standards governing the continued detention of those Guantánamo detainees whom he suggested could neither be prosecuted nor released would be brought into line with “the rule of law.” Then in 2010, the administration revealed that it had decided that there were some four dozen detainees who fell into this category, as “law of war” detainees held under the AUMF. In his 2013 address, President Obama revisited this issue a little more cautiously than he had four years earlier, and this could herald a welcome change in approach. The President referred to those detainees who “cannot be prosecuted,” including “because the evidence against them has been compromised or is inadmissible in a court of law.” He said that “once we commit to a process of closing Guantánamo I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.” Without a commitment from Congress and the administration to abide by and implement human rights principles and law, his own legacy will remain one of detentions and military commission trials – either still at Guantánamo or relocated to the US mainland – that flout the USA’s international human rights obligations.