Closing Gitmo

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.


  1. In my opinion existing legal strategies were sufficient to meet any threat.

    The criminal system would address them domestically like any similar criminal act. Countries dealing with these issues for years have successfully employed this approach.
    International captives would be dealt under Geneva Conventions if found in a war context. A conflict has concluded once major operations have ended, and it becomes a domestic issue after that. Countries that have been highly unsuccessful for decades in dealing with these issues through creative lawmaking should not be the model for the rest of the world.

    The problem is not how to deal with the terrorists, but how to deal with illegal wars that disregard the rule of law. Special terrorism laws are only designed because these accused are somehow less human and less deserving of legal rights than others because the tactics they employ can be so abhorable.

    However, succumbing to these fears only reinforces accusations of aggression for self-interests, gross inequalities, and double standards that created such threats to begin with. The world is far more unstable and dangerous today than it was 7 years ago. Pre-emptive strikes, the use of torture, and rise of xenophobia and domestic discrimination are the best recruitment tools any adversary could hope for.

    Will the new administration come this full realization? Unlikely. But they are more likely to use diplomacy and address root causes to prevent these issues from arising in the first place.