6 The future of Guantánamo
104. At the time of our visit in September 2006,
319 detainees had been released or transferred from Guantánamo
and a further 130 had been approved for release or transfer. Although
more than forty detainees have been transferred or released since
then, the high number approved for release or transfer but still
detained is a matter of concern, not least for the US authorities.
The reasons given to us why the men cannot be released or transferred
from Guantánamo fell broadly into three groups, which in
some cases may overlap: some of the men are still considered to
be dangerous and the US has been unable to secure sufficient guarantees
from other countries that they will be controlled or monitored;
others are not considered to be dangerous but their countries
of origin refuse to take them back; others are at risk from torture
or other mistreatment, including death, if they return to their
own countries. Among those in the first category are apparently
the nine former British residents, as well as large numbers of
Afghans. In the last category are included fifteen Chinese Uighurs,
and Arabs of various nationalities. Most of the remaining detainees
hold Afghan, Saudi or Yemeni nationality.[70]
105. A point made repeatedly by those whom we met
in Washington and at Guantánamo was that the majority of
those who remain in detention are dangerous men, who if released
will return to the terrorist campaign they are alleged to have
been part of. Various figures ranging to as high as 20 were quoted
to us of detainees who had been released, only to have been encountered
again on the battlefield. One example given to us was that of
Abdullah Mehsud, who was picked up in Afghanistan but was released
after claiming to be a non-combatant, low-level figure. He was
later involved in terrorist acts in Afghanistan and was killed
in action by Pakistani forces in March 2006.
106. The FCO wrote to us that intelligence gathering
at Guantánamo "has provided information of importance
to the UK's national security."[71]
When we visited, we were told that some of those detained continue
to yield intelligence of high value, notwithstanding the fact
that the great majority of detainees have been in US custody for
over four years. However, we were told that some of them were
close contemporaries, at training camps and elsewhere, of the
current generation of al Qaeda and Taliban leaders. The US also
believes that it will need to continue to detain the remaining
330 detainees for as long as the 'war on terror' continues, or
until they no longer present a severe threat. The military commissions
will be held in Guantánamo. This, together with the significant
financial investment in building new, state-of-the-art prisons
at Guantánamo and the absence of any obvious alternative
place of detention that could meet the US authorities' perceived
need, suggests the camp will not be closing in the near future.
107. None of this has prevented widespread calls
for the immediate closure of the detention centre at Guantánamo
Bay. In 2002, our predecessor Committee expressed concern about
the failure of the US authorities to provide detainees with due
judicial process, and later it called for the detention of terrorist
suspects to be regularised in accordance with international law.[72]
Concern in Parliament and elsewhere grew over the following four
years and in 2006, a succession of senior government ministers
called for the closure of the camp. Launching the FCO's Annual
Report on Human Rights on 12 October 2006, Foreign Secretary Margaret
Beckett made the clearest statement yet, declaring that "The
continuing detention without fair trial of prisoners is unacceptable
in terms of human rights."[73]
108. To this, the US Administration replies that,
if Guantánamo were to be closed, something would have to
take its place. In an interview with the BBC, the State Department's
senior legal adviser, John Bellinger, said that:
No one's comfortable with the situation in Guantánamo.
But if we really want to reduce the numbers to send people back,
progress cannot be made by just simply saying Guantánamo
should be closed. We have to have practical suggestions, practical
ways to move forward.[74]
President Bush himself has said, in his landmark
speech of 6 September 2006, that the US will "move toward"
closing Guantánamo:
America has no interest in being the world's jailer.
… We will continue working to transfer individuals held at
Guantánamo, and ask other countries to work with us in
this process. And we will move toward the day when we can eventually
close the detention facility at Guantánamo Bay.[75]
109. Privately, US officials are quick to request
from all those who demand closure of Guantánamo, what proposals
they have for dealing with the dangerous men who are presently
held there. However, many outside the United States regard Guantánamo
as a dilemma of the Bush Administration's own making, and are
not inclined to 'rescue' that Administration.
110. It is indeed possible to see this dilemma as
one purely for the United States. However, the obvious retort
to President Bush's complaint that "America has no interest
in being the world's jailer"—'stop locking people up'—is
too simplistic. For our part, we accept that many of the men presently
held at Guantánamo represent a threat to the United Kingdom
and its allies. Just as their treatment is a shared interest based
on universal values of human rights, so their fate is a shared
responsibility, not a matter for the US alone. We therefore agree
that it is incumbent on those who call for its closure to suggest
what, if anything, should replace the detention centre, what should
happen to those who are currently held there, and how the public
are to be protected from those who have a professed commitment
to engage in acts of terrorism.
111. Proposals for how to close Guantánamo
in an orderly way have been thin on the ground, but there are
some. Amnesty International sent us a paper in which they set
out a proposed "framework for closing Guantánamo."[76]
This framework envisages fair trials for those against whom there
is admissible evidence; no forced repatriations; granting of asylum
in the US to those former detainees who have a well-founded fear
of persecution if returned to their country of origin, or exceptional
leave to remain in the US, or transfer to a third country willing
to receive them; and a system of reparations for those unlawfully
detained. Amnesty further suggests allowing the UN's experts on
'arbitrary detention' to visit the camp with full access, in the
interests of transparency.
112. We congratulate Amnesty on developing this proposal.
Unlike some others who call for the closure of Guantánamo,
Amnesty has recognised there is a problem that requires a solution
which will protect the public from terrorist threats. We do not
suppose it stands any realistic chance of being accepted in full
by the US Administration. Nonetheless, it does establish some
basic principles which should guide any attempt to resolve the
dilemma of how to deal with Guantánamo and the people in
it.
113. Another, quite different series of recommendations
has been made by retired General Barry McCaffrey of the US Military
Academy. In the report of his June 2006 visit to Guantánamo,
General McCaffrey sets out a "way ahead" for the Administration.[77]
In terms which are very frank, and which may strike more of a
chord in Washington than the ideas of groups such as Amnesty,
the General concludes that "We need a political-military
decisive move to break the deadlock." He then considers,
only to reject, the solution floated by many in the United States
(but by few outside it) of handing over the running of Guantánamo
to an international body: "We would provide and pay for the
detention vehicle—the international legal system would accept
jurisdiction. Not likely."
114. Here in full is General McCaffrey's "way
ahead":
We need to rapidly weed out as many detainees as
possible and return them to their host nation with an evidence
package as complete as we can produce. We can probably dump 2/3
of the detainees in the next 24 months. Many we will encounter
again armed with an AK47 on the battlefields of Iraq and Afghanistan.
They will join the 120,000 + fighters we now contend with in those
places of combat. It may be cheaper and cleaner to kill them in
combat [than] sit on them for the next 15 years.
We need to pick out the most dangerous of the international
terrorists (possibly the top 25) and have them tried in US Federal
Court with a possible use of international law as the basis of
criminal conviction. Tough. It worked with Noriega—why not
al-Qaeda?
As a general rule, we probably need a new Federal
Law that allows for civil indefinite detention of foreign terrorists
when convicted by a US Military Court-Martial. The civil detainees
could have the right of appeal to the Federal Court system. This
requires the active involvement of the Congress to pass any required
new legislation.
Finally, we need to work creatively to support foreign
legal jurisdiction over their nationals who violate international
law and conduct terrorist actions. Better these foreign governments
try these dangerous terrorists by their own legal system where
possible.
General McCaffrey then adds one further point, which
would probably gain wider support than his other proposals:
We need to be completely transparent with the international
legal and media communities about the operations of our detention
procedures wherever they are located. Arrogance, secrecy, and
bad judgment have mired us in a mess in Guantánamo from
which we are having great difficulty in extricating ourselves.
We heard similar voices from within the US Administration
when we visited Washington DC, though they were less forcibly
expressed.
115. Aspects of General McCaffrey's scheme for the
closure of the Guantánamo Bay detention centre—such
as 'dumping' detainees in their countries of origin regardless
of the fate that awaits them—are clearly unacceptable on
human rights grounds, but as the basis for a consensus on the
way forward it has the great benefits of coming from inside the
US military establishment, and of being grounded in realism. Stripped
to its essentials, his proposal to close Guantánamo contains
the following elements:
- Subject those detainees against
whom there is strong evidence to due legal process
- Release or transfer the other detainees
- Devise a better, transparent procedure for dealing
with future detainees
The debate on such proposals has to take place primarily
in the United States. However, as the US has been asking for ideas,
it should be prepared to listen to and to work with its allies.
For their part, those allies need to stand ready to help.
116. We
conclude, in line with our previous Reports, that those detained
at Guantánamo must be dealt with transparently and in full
conformity with all applicable national and international law.
But we recognise too, as we have before, that many of those detained
present a real threat to public safety and that all states are
under an obligation to protect their citizens and those of other
countries from that threat. At present, that obligation is being
discharged by the United States alone, in ways that have attracted
strong criticism, but we conclude that the international community
as a whole needs to shoulder its responsibility in finding a longer-term
solution. We recommend that the Government engage actively with
the US Administration and with the international community to
assist the process of closing Guantánamo as soon as may
be consistent with the overriding need to protect the public from
terrorist threats.
70 Ev 11, para 3 Back
71
Ev 11, para 2 Back
72
Appendix 2 Back
73
"Launch of the 2006 Annual Report on Human Rights",
FCO News release, 12 October 2006 Back
74
"US call over Guantánamo detainees", BBC News
online, 20 October 2006 Back
75
"President Discusses Creation of Military Commissions to
Try Suspected Terrorists", White House news release, 6 September
2006 Back
76
Ev 9-11 Back
77
The full report is available at www.fas.org/man/eprint/mccaffrey.pdf Back
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