Yesterday’s widely-reported story that the Obama administration-in-waiting is already drawing up plans to close the facility at close the facility at Guantánamo Bay and try the remaining suspects in the U.S. has generated a lot of buzz. In fact, the Obama team appears to be trying to temper expectations, as last night saw further stories emphasizing that no decisions have yet been made.
One should probably be skeptical about such reports in any event, given the incentive for anonymous “advisors” to the incoming administration to try to steer the agenda. But no reasonable person, in my view, should be surprised by Obama’s reluctance to “close Guantánamo with the stroke of a pen”, as the ACLU yesterday urged. As my friend Benjamin Wittes has comprehensively documented in his recent book, Law and the Long War, the current population of Guantánamo is composed in significant part – though by no means exclusively – of some exceedingly dangerous individuals, who have openly and repeatedly indicated their desire to commit mass murder given the opportunity. What’s the problem? For one, much of the evidence against them does not fit the standards required for ordinary criminal trials under existing U.S. law. Does one simply let them go free?
Others, while not dangerous, pose unique problems. For example, the U.S. admits the 17 Chinese Uighurs still held at Guantánamo are not enemy combatants, but does not want to release them into the U.S., cannot return them to China because of the risk of torture, and no other country (including Canada) will accept them as refugees.
Modern terrorism, simply put, poses significant challenges to our existing legal framework. What changes might we have to make to meet those challenges – from minor tweaks, to creating an parallel justice system for terrorism cases? In the U.S., this is fast becoming a matter of major discussion (see, for example, the excellent debate in Opinio Juris.) In Canada, at least to my knowledge, we have so far not really considered these matters much, aside from security certificates in the immigration context (cf. the Charkaoui case). Perhaps we should start.