Co-authored with Jack Goldsmith, Slate, December 8, 2008
President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing the facility, which currently holds 250 or so alleged terrorists, involves a raft of hard decisionsand trade-offs that won’t get any easier simply because the new president’s name is not Bush. The following is a checklist of the major questions President Obama will face, in rough sequential order, before he can shutter the camp:
Who must be released? Nobody contends that all of the current detainees at Guantanamo require continued incarceration. The Bush administration has already cleared approximately 60 of them for release or transfer to other countries. The Obama administration could assume some additional risk by letting others go. The first step in closing Guantanamo, then, will be to decide how many people truly must be held and how many must be held in American, rather than foreign, custody.
Where to release detainees? Where to send some of the releasable detainees poses an intractable problem. The Obama administration is legally barred from sending them to home countries that will torture or persecute them. The administration cannot easily set them free inside the United States, for some have terrorist backgrounds or connections, and the mere taint of having been called “enemy combatants” by the U.S. military will make them unwelcome. And the administration will have a tricky time convincing rights-protecting countries to resettle people deemed too dangerous to release here. The new president will thus need to figure out which detainees might be admitted to the United States and then leverage his substantial international prestige to persuade other countries to accept the rest. Ironically, the more willing he is to free detainees, the more difficult this problem will become.
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