Op-Ed: Guantanamo Order Endangers Obama's Legacy

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President Obama promised to close the detention center at Guantanamo Bay. But he reluctantly signed a bill that will limit his ability to do so. In an op-ed, Tom Malinowski of Human Rights Watch warns that "even as he untangles George Bush's legacy, Obama must be careful not to leave a worse one."

NEAL CONAN, host:

President Obama began his presidency with a promise to close the detention center at Guantanamo Bay within a year. Almost two years later, Guantanamo is still open, and last week the president signed a defense authorization bill that would prevent the administration from using taxpayer funds to transfer terror suspects to the United States for trial.

The United States government says many of the more than 170 men still at Guantanamo are too dangerous to release, but can't be prosecuted either, which leaves an option to establish rules for them that amount to indefinite detention without trial.

In an op-ed in The Washington Post, Tom Malinowski of the Human Rights Watch argued that would create a dangerous precedent. But then, what should we do with suspects like Khalid Sheikh Mohammed, the alleged mastermind of the September 11th attacks?

Give us a call: 800-989-8255. Email: talk@npr.org. You can join the conversation and find a link to the op-ed at our website that's at npr.org, click on TALK OF THE NATION.

Tom Malinowski joins us from our bureau in New York. He's Washington director of Human Rights Watch. Nice to have you with us today.

Mr. TOM MALINOWSKI (Director, Human Rights Watch): Thank you.

CONAN: And the prison at Guantanamo is becoming an enduring feature of the Bush and now Obama presidencies. You say it was a poorly improvised response to September 11th that's on the verge of now becoming permanent.

Mr. MALINOWSKI: Well, that's what I'm afraid of. You know, both President Obama and John McCain promised to close it during the 2008 campaign. John McCain actually promised he would close it on day one of his presidency. And it's proven to be much more difficult than imagined, in part because of very determined and partisan opposition that President Obama has faced.

But there is a real danger that if the mechanism that President Obama uses to deal with these very difficult remaining cases he still has in Guantanamo -about 46, 48 prisoners left who he's decided are hard to prosecute, but too dangerous to release - if that mechanism gets put in to place in a way that can be applied in the future to people we capture next year, 10 years from now, 50 years from now, then that Guantanamo principle of detention without charge will be with us forever.

CONAN: Yet if these detainees can't be transferred to the United States for trial, what alternatives does the president have?

Mr. MALINOWSKI: Well, actually they still can be. You mentioned that the legislation that Obama signed prohibits the use of taxpayer funds. That's not quite correct. It only prohibits the use of Department of Defense funds.

If the president is determined to close Guantanamo, as he says he is, if he is determined to mitigate the effects of this legislation, as he said he would when he signed it, he can still use, for example, Justice Department funds and other funds available to him as president to bring these men to justice in American courts as he clearly wants to do.

CONAN: Yet, that has its risks too. We remember the case of Ahmed Khalfan Ghailani, the man alleged for - charge with 280 charges in connection with the bombings of U.S. embassies in Tanzania and Kenya back in 1998. Convicted of just one of those charges, this after much evidence was not able to be presented by prosecutors. It was thrown out by the judge as inadmissible.

And well, the concern is if you bring people on civilian charges in civilian courts and the evidence is thrown out of court, what do you with them then?

Mr. MALINOWSKI: Well, you know, the Ghailani verdict, I think, has been misunderstood. This was a man who was convicted and will likely be sentenced to life in prison. And once he's sentenced, I predict we'll never hear about him again. He won't be a problem to the United States anymore.

Had he been kept in Guantanamo in the state of indefinite detention without trial, he would have been a permanent problem, a permanent source of controversy for the government. And I don't think that regime of detention would be sustainable for the rest of his life.

And then what do you do with him when the pressure for his release would mount and mount and mount? So, you know, I think given those two alternatives, prosecuting him successfully - and it was successful - in a civilian court in New York was by far the best option for the United States.

CONAN: If he appeals his conviction and gets thrown out on the same kind of technicality as the other - the evidence was thrown out of court, he then walks.

Mr. MALINOWSKI: Well, I don't think, in a democracy like ours, we can have a system which guarantees 100 percent that someone in the government wants to imprison will be imprisoned. That's not what we are as a society and we never will be. We do have a system in our civilian federal courts that has worked in almost every single case we applied it. Can you think of a terrorist, a significant terrorist, who has gone through our civilian courts and not been convicted and not been put away in a way that's safe and secure for the American people?

And yet every single person who's in Guantanamo - nine, 10 years after the camp is opened - remains a continuing problem for us, a source of pain and controversy, partisan dispute for the president, for the Congress, for the country. You know, I think that's a controlled experiment between two different systems in which our established civilian system has won, hands down.

CONAN: Yet those who have been released from Guantanamo - you can argue about the numbers - but a significant fraction of them have gone back to their previous activities.

Mr. MALINOWSKI: Well, I think you can argue about that. You can argue that there have been a handful of people who have gone back or started fresh terrorist activity. But the numbers are - I don't believe they are as high as the 20 percent that some people suggest it is.

CONAN: And some, as I'm sure you know, say it's much higher than 20 percent.

Mr. MALINOWSKI: Well, I don't think there's any evidence for that. There was a time when the Defense Department was including people on its list of recidivists who had written books or done radio interviews, such as the one we're conducting, in which they criticized their treatment in Guantanamo. And that was counted as a hostile act against the United States. No one has seen the names of the people who they claim have resumed terrorist activities.

Now, that said, there clearly are some very, very bad cases. And the question is: Are these people a greater asset to al-Qaida sitting in Guantanamo, or are they a greater asset if they were released? And I don't think that's an easy call. You've got about 170 people left there, of whom a significant fraction can and should be prosecuted - so really, only a few dozen who would be released if the president were allowed to go forward with his plan.

If those people are released, how much more does al-Qaida benefit if 5 or 10 percent of them then go back to becoming cannon fodder for the terrorists? And compare that to how much al-Qaida benefits if we keep Guantanamo open forever, and it remains a recruiting symbol that they use to encourage hundreds and hundreds of people to join their movement. Again, I don't think it's a close call.

CONAN: Khalid Sheikh Mohammed, hardly cannon fodder.

Mr. MALINOWSKI: Khalid Sheikh Mohammed is not going to be released. He's going to be prosecuted if the Congress of the United States allows the president to bring him to justice.

CONAN: Let's get a caller in on the conversation. Our guest on the opinion page this week, Tom Malinowski, Washington director for Human Rights Watch, and his op-ed in Friday's Washington Post, "A Detention Route Obama Should Avoid." He's also the former senior director at the National Security Council.

And we'll start with Marty, Marty with us from Waldwick in New Jersey.

MARTY (Caller): Hi, folks. I just want to make the comment that it's a unique situation, because putting aside the people that are incarcerated that are U.S. citizens, they're - you can make an argument that they should be treated like POWs. But because they're not part of a nation-state and we never declared war, it's this no man's land that's resulted in Guantanamo that has resulted, admittedly, in a lot of the problems that your guest is suggesting. However, until the groups such as al-Qaida and the Taliban make "peace", quote, unquote, with the United States, I believe that they should be treated (technical difficulty) kind of enemy combatant.

CONAN: Tom Malinowski?

Mr. MALINOWSKI: Well, you know, we have a - we clearly have an interest in not allowing significant terrorists like Khalid Sheikh Mohammed and others to go back out there in the world, where they can threaten us again.

But we have a system, a traditional system of justice here in this country that allows us to do that securely, that works, that puts these people away, if we're allowed to use it. We have a system in Guantanamo that has resulted in the release of dangerous people, and in the prosecution in the military commissions of only a couple of people. We have two systems: One that's established and that works. We should use it. One that has failed miserably over the last 10 years - we should stop using it. I think that's fairly straightforward.

CONAN: Marty, thanks very much for the call. Appreciate it.

MARTY: Okay.

CONAN: Let's see if we can go next to - this is Bartleby, Bartleby with us from San Ramon in California.

BARTLEBY (Caller): Hello, there. Yeah. I'd just like to say I think that Guantanamo Bay should be closed, and we need to normalize relations with Cuba. And then as far as the terrorists are concerned, America really needs to join the International Criminal Court, and international terrorists should be tried at that venue.

Mr. MALINOWSKI: Shall I respond?

CONAN: Yes, if you would.

Mr. MALINOWSKI: It's a nice idea. The International Criminal Court isn't really set up right now to try terrorism suspects, certainly not those who were involved in the 9/11 attacks, because the court did not exist in 2001 when 9/11 happened. So, again, you know, I think rather than searching for new and novel ways of bringing these people to justice, we ought to use the system that we've been proud of in this country for over 200 years and that worked so well.

BARTLEBY: It - we shouldn't be that proud.

CONAN: We shouldn't be that proud. Is that what you said, Bartleby?

BARTLEBY: Yes.

CONAN: Why?

BARTLEBY: Because the - neither the civilian nor the military courts will offer true justice to these international terrorists.

CONAN: And what would...

BARTLEBY: America is not above the law.

CONAN: No. It's not a member of the International Criminal Court, either, but...

BARTLEBY: If it should be.

CONAN: Well, again...

BARTLEBY: That's the point.

CONAN: ...ex post facto is...

BARTLEBY: Thank you.

CONAN: ...difficult. Anyway, we're talking on the Opinion Page this week with Tom Malinowski, Washington Director for Human Rights Watch. You're listening to TALK OF THE NATION, from NPR News.

Jamie's on the line, Jamie calling from Half Moon Bay in California.

JAMIE (Caller): Hi. The primary concern that I have that got me to call is that a nation which captures people and hold some indefinitely without trial of charges, sounds to me like a police state. And my big concern is if I live in a country that can do that, how do I know I'm not going to someday fall into that class of people that the government feels like they can round up and hold indefinitely without charges? So, you know, I feel like it's completely contrary to our entire philosophy of government should be doing this.

CONAN: And Jamie, that's the slippery slope argument, and is an example of a long way down is slippery slope, perhaps. But Tom Malinowski, I think precedent is what you're concern about.

Mr. MALINOWSKI: That is what I'm concerned about. You know, look. President Obama faces a really, really tough dilemma. He inherited these prisoners in Guantanamo Bay. Some of them were mistreated. Some of them may have been tortured. The evidence against them wasn't preserved by the Bush administration because that administration had no intention of putting these men on trial. So now, what do you do? And the administration has decided that there are about 46 prisoners there who are too dangerous to release and too hard to prosecute.

And I understand the dilemma that the president faces. What I want to make sure he doesn't do is to create a system for dealing with those 46 people that can also be used by future presidents - 10, 20, 50 years from now - to imprison other people who the government of the United States might think are dangerous in the future. We have no idea what kind of crisis we're going to face then. We have no idea who's going to be president - liberal, conservative, Democrat, Republican. We have no idea. But I don't think it's wise to give every future president this kind of power.

CONAN: Jamie, thanks very for the call.

JAMIE: Okay. Thanks. Bye.

CONAN: Email from Chris in San Jose: When have enemy combatants ever been tried in civilian courts in the past? They are not U.S. citizens, do not enjoy the rights under the U.S. Constitution as U.S. citizens. However they were tried in World War I, World War II, Vietnam, Korea, that is how they need to be handled.

Mr. MALINOWSKI: Well, actually, it depends on what you think is an enemy combatant. I mean, a lot of these guys weren't captured by the military on anything like a battlefield. They were arrested by the police in countries like Pakistan, in Europe, in North Africa, in cities, just the way people might be arrested in the United States.

But actually, it's not true that even enemy combatants captured on a battlefield in the past have been tried in civilian courts when we, as a country, have wanted to deny them the status of a soldier. For example, General Manuel Noriega, the president of Panama who's the commander-in-chief of the Panamanian armed forces, when the United States invaded Panama in 1990 and took him into custody as a prisoner of war, he demanded the right to be tried before a military courts, to be treated as an enemy combatant, because he thought that was his right as a soldier. And the United States said, no. You are not worthy of that. You are a drug trafficker. You are a dictator, and you are going to be tried for your drug trafficking crimes before a civilian court.

It used to be in this country that giving someone a military status and military trial was considered an honor, and putting someone before a civilian court, lining them up in front of the rapists and the murderers who normally get tried there, was not considered an honor. And somehow, the Bush administration turned that on its head for people, and I want to get it back to where it was.

CONAN: Let me ask you: A lot of people are giving President Obama a lot of advice two years into his term. How do you get your voice heard in the White House?

Mr. MALINOWSKI: Well, hopefully, some folks are listening right now and reading the op-ed that I wrote. But also, you know, I talk to folks at the White House quite often. They are tremendously conscientious, good people who are struggling to solve an extraordinarily difficult problem that they inherited. They didn't create this problem. It was left to them. And they have faced tremendous partisan resistance from Republicans in the Congress to their effort to close Guantanamo in a way that is responsible and safe and in keeping with the American traditions. So, you know, I give them advice, but, at the same time, I have to recognize just how difficult the dilemma they face is.

CONAN: And do you fear that this decision is going to be made soon?

Mr. MALINOWSKI: Well, I think, you know, the White House has signaled that it is going to issue an executive order that defines the rules under which those 46 people in Guantanamo can be held without charge, and those rules are going to be better, I think, than the rules that exist right now. And so I would welcome an order that gives those people greater due process.

What I've urged them not to do is to issue an order that also applies to terrorist suspects we might capture in the future. I think, in the future, we're not going to abuse people. We're not going to mishandle the evidence. We're going to do it professionally. We will be able to prosecute people we capture, in the future, in our civilian courts.

CONAN: Tom Malinowski, Washington director of Human Rights Watch. Thanks very much.

Mr. MALINOWSKI: Thank you.

CONAN: We've posted the link to his op-ed at npr.org. Click on TALK OF THE NATION.

Tomorrow, more on this theme. As he approaches his second anniversary in office, no shortage of advice for President Obama. A range of opinions tomorrow. Mary Louise Kelly will be in this chair. See you again on Wednesday.

It's TALK OF THE NATION, from NPR News.

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