Good-bye, Guantanamo

President Barack Obama last Thursday dismantled — at least on paper — three of the Bush administration’s most controversial antiterrorism policies: the network of secret overseas CIA prisons, off-the-book interrogation methods such as waterboarding, and the detention facility at the Guantanamo Bay Naval Base in Cuba, which houses 245 terrorism suspects and has become a symbol of injustice to much of the world.

Obama has ordered a six-month, high-level review intended to work out the details of implementing his three executive orders. Among the challenges: deciding the fate of dangerous prisoners who can’t be tried in American courts and making sure less dangerous detainees transferred to other countries aren’t tortured. Obama also ordered the CIA to adhere to interrogation methods outlined in the Army Field Manual, although he will decide whether to keep some techniques secret to prevent terrorists from learning how to resist them.

Philip O’Neill, a School of Law lecturer on national security law, says that closing Guantanamo within a year is realistic and delivers a symbolic message to the world. But grappling with the implications of erasing the Bush policies will be a tall order and may be unsettling to some Americans. For example, the legal future of Khalid Sheikh Mohammed, the self-described mastermind of the September 11, 2001, terrorist attacks will probably unfold “inside U.S. borders,” says O’Neill, who is also a partner at the Boston law firm Edwards Angell Palmer and Dodge and the author of National Security and the Legal Process (Oxford University Press).

BU Today asked O’Neill whether Obama’s executive orders will weaken America, or make it safer.

BU Today: What are the national security implications of President Obama’s executive orders?
O’Neill: Basically, the disposition of prisoners taken in war carries security implications, as well as constitutional ones. From a security standpoint, there are three major goals. You have preventive detention to keep restrained individuals from constituting a continuing threat. You have appropriate punishment for those who commit violations of the laws of war. And you have the gathering of intelligence and the provisions of legal parameters for securing it. That’s an area where issues have arisen, obviously.

What will happen to the detainees at Guantanamo?
As we move forward with the implementation of this order, you will have detainees falling into different categories, much as they have so far. Some will be considered the most dangerous, and there will be a desire by the Obama administration to keep them locked up. They’ll evaluate evidence to see if criminal prosecutions can be brought in federal court. But the problem is, you want to prevent risking the disclosure of critical intelligence sources and methods. If that couldn’t be done, it may be that the administration would continue to detain those individuals as enemy combatants and perhaps let play out the habeas corpus litigation that has been percolating through our court system.

Another category is those not considered most dangerous and who have no continuing intelligence value. Efforts will be stepped up to transfer them back to their home countries, or if there are legal issues arising from that because of their potential treatment, then they would go to third countries.

There may be a third category of detainee, those who seem to be too dangerous to send home or elsewhere, but who cannot be effectively prosecuted, for whatever reason. You have to bear in mind that detention legal policy involves crime and punishment, but the detention of war criminals often takes place on the battlefield. That is a circumstance that doesn’t exactly permit the preservation of evidentiary niceties. It focuses on survival and combat. There are difficulties associated with the gathering of evidence, and some of it can be of such an important nature in terms of our intelligence sources and information that there’s a reluctance to compromise that.

Do you see a negative impact to shutting down the detention facility at Guantanamo?
Guantanamo has taken on huge symbolic meaning around the world, so I don’t particularly see the downside of closing that facility.

Do you think one year is a realistic timetable?
Yes.

What about dismantling the network of secret prisons in one year?
I don’t think I’m in a position to speak to it. I just don’t know enough about it. I don’t know that anyone does. There are probably a few senators who do, in terms of oversight.

Will Obama’s order on interrogation methods render them less effective?
There have certainly been reports suggesting that some exception may be carved out with respect to the degree and the types of practices that may be employed in certain situations. I think that’s not settled yet. That’s going to be a thorny area for the new administration to wrestle with.

There will likely be a shift to have the CIA adhere to the interrogations in the Army Field Manual, a well-known interrogation manual. It was fairly recently revised. We certainly have trained our people, particularly in the Department of Defense, in that regard for some time. In that way, it will be somewhat easier to know where the boundaries are and to adhere to them. Where it may become problematic is if there are particular circumstances that arise where an exception is invoked. It’s not clear whether that exception will be built into an executive order now or in the future. We just don’t know as we sit here today. So it’s a little bit murky. It’s a work in progress.

Will the use of military tribunals be affected?
That will be part of the evaluative process. They could be retained and reformed, as one possible option. I’m sure that will be looked at. It depends where the detainees who remain fall, in terms of the categories I identified earlier. It’s the category of dangerous detainees who can’t be let go, yet who cannot be easily prosecuted, where the rub will be, where the system will have to be adjusted. So tribunals may, in fact, remain in some shape, manner, or form.

What do you think the legacy of Guantanamo will be, in legal terms?
I think unsettled in the near term, in the sense that I expect we’ll be more forward-looking rather than backward-looking as this new administration begins. As a result, there will be a lot of issues that will remain legally unsettled. They probably won’t be revisited until the next time circumstances arise where various options are being explored. Then there will be a look at historic precedent and the arguments that were made and tested, just as the Bush administration looked at what Roosevelt did and what Lincoln did as part of its examination of executive power and practice in wartime. So our recent experience will be part of the historic legacy that is examined in the future, and perhaps tested more fully then.

What message has Obama sent to the world?
A fresh start. But it’s going to be a continuing process. This may not be the only conversation you and I have.

Caleb Daniloff can be reached at cdanilof@bu.edu.