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DW interview

January 21, 2011

The apparent decision by US government to go back to military commissions used under President Bush to try Guantanamo detainees makes the closure of the camp very unlikely, says a lawyer for Guantanamo inmates.

Picture of Guantanamo camp in Cuba
The Guantanamo camp will remain open for nowImage: AP

Jonathan Hafetz is an associate professor of law at Seton Hall University in Newark, New Jersey. He was previously an attorney at the American Civil Liberties Union's National Security Project and litigation director at New York University's Brennan Center for Justice. He has represented several Guantanamo inmates and took part in cases in which the US Supreme Court recognized the right of Guantanamo detainees to habeas corpus. He is the author of the new book "Habeas Corpus after 9/11: The Rise of America's New Global Detention System".

DW: According to a detailed report in the New York Times, US Defense Secretary Robert Gates will soon lift a ban President Barack Obama signed on his first day in office that prohibited trials of Guantanamo inmates before a military commission. What would this dramatic reversal of Obama's Guantanamo policy mean in practice for the 170 detainees there?

Jonathan Hafetz: It means that at least some of them may actually face a trial of some sort. The administration has said that approximately 40 or so of the 170 remaining detainees were going to be tried either in civilian courts or in military commissions. The administration last year had indicated that it intended to try Khalid Sheikh Mohamed and four others allegedly responsible for the 9/11 attacks in a federal criminal court. That produced a big backlash in the public, locally in New York where they were going to be tried and in Congress.

And Congress has now prohibited the president from using military funds to bring any Guantanamo detainee to trial in the United States. This has not closed off, but made it much more difficult for the administration to try to bring any Guantanamo detainee to trial in the regular civilian courts. That leaves them with two options: One is to continue to detain the inmates indefinitely or the other to use the military commissions and hold military trials at Guantanamo. Given that the administration seems to be reigniting the military commission process. That said, a number of Guantanamo detainees are not going to be tried before any tribunal, military or civilian, but will continue to be held indefinitely or will be repatriated to their home or a third country. But the main option is that this revives the military commission process and suggests that the federal civilian trials do not appear to going forward at this time.

Is Obama's original promise to close the Guantanamo detention camp essentially dead now?

I don't know whether it's dead for good now, but it's certainly been dealt another setback. The pledge was made by President Obama to close Guantanamo more than two years ago and it still doesn't show any sign of being closed. There are greater obstacles to it being closed now then when he took office two years ago. We now have congressional legislation prohibiting the trial or transfer of any detainee to the United States. Absent of a change of this law or a transfer of the Guantanamo detainees, I don't see how Guantanamo is going to close anytime soon. The ban is only in place for one year, so it's possible that in the next year we could see some change and the Obama administration is able to bring some Guantanamo detainees to the United States. But at this point his hands are tied and we are seeing the demise of President Obama's plan to close Guantanamo at least for the time being.

The Guantanamo camp and the treatment of the inmates has severely damaged Washington's reputation in the world. What effect will the reversal of Obama's Guantanamo policy have on Obama's and America's standing in the world?

It will have some effect. The military commission trials that are going to go forward are very controversial. They do not operate by the same regular standards that normal courts do. There are a lot of troubling questions about the use of evidence gained by torture and a lot of troubling questions about the crimes that are being prosecuted as war crimes, for example providing material support to terrorists, which is not recognized as a war crime in the international community. So I think it's going to raise a lot of concerns in the international community among America's allies and hurt America's reputation abroad. What effect it will have domestically is hard to tell.

I think the Obama administration has unfortunately made the decision that it's not going to expend any further political capital on Guantanamo. I think it sees its changes in Guantanamo policy as relatively cost-free. I think the administration would like to close Guantanamo, but by closing Guantanamo and acting aggressively it thinks it would be attacked from the right and not doing so it is not going to suffer much in terms of domestic politics. So I think it's going to hurt the United States internationally, it's going to harm America's reputation and it's going to long-term damage to the rule of law, but whether it's going to hurt the administration politically in the short term, I don't know.

You are personally involved in the debate over Guantanamo since you represent some inmates as a lawyer. What does this mean personally for you and your cases?

It's troubling and disappointing to see how the situation has unfolded. Disappointing that the Obama administration was not stronger in trying to close Guantanamo and also disappointing to see what happened in Congress to try to put road blocks in the way. For one detainee who I represent, Mohamedou Slahi, it means that we are going to have to continue to fight in the courts to try to obtain his release. This is an individual who was badly tortured. He is from Mauretania, he was rendered to a secret prison and tortured badly by the United States - which is all documented in Senate Armed Services Committee reports - and brought to Guantanamo where he has been held for nine years without trial. The solution to his plight, like that of many others, is not going to be forthcoming from the political branch. So what it means is that it places much more importance on going back to the courts and trying to win the basic human right, not to be detained indefinitely for so long without trial and if one is not charged than one is to be released through our habeas corpus proceeding.

Interview: Michael Knigge
Editor: Rob Turner