The Obama administration has moved swiftly to end controversial practices that tarnished America’s international reputation and undermined its moral authority. But in doing so, it has raised new questions about how the United States will prosecute and punish terrorists in future, and where and under what conditions it will send them if they are not considered to be a major threat.
These new questions underscore an old dilemma facing countries targeted by terrorists: Can attacks be prevented under existing systems of law and justice that uphold standards hardcore terrorists themselves scorn and use to withhold information and avoid conviction?
In one of his first decisions after becoming U.S. president, Barack Obama signed orders to close the Guantanamo Bay detention center in Cuba within a year, review military trials of suspects, and ban torture and other coercive interrogation methods. He had earlier directed the Defense Department to suspend detainee trials and cease referring any new cases pending completion of the review.
Obama also prohibited the CIA from maintaining prisons in places where detainees could be questioned outside the scope of U.S. military rules and the protocols of the Geneva Conventions, which set standards for humane treatment of prisoners in wartime.
The al-Qaida suspects who were being tried, or about to be brought before the military commissions, are alleged to have played a prominent role in the 9/11 attacks that killed nearly 3,000 people, or to have been implicated in earlier attacks on U.S. interests abroad, or both. However, most of the 242 men still held at Guantanamo have not been charged.
U.S. allies and friends in Asia will welcome Obama’s actions. It will make cooperation with the U.S. to curb terrorism easier and facilitate positive engagement with America generally. This is particularly so for Muslim-majority countries like Indonesia and Malaysia. Persistent allegations of mistreatment of Muslims detained by the U.S. on suspicion of involvement with the international terrorist network aroused resentment in Indonesia and Malaysia.
However, implementing the directive to close the detention center in Cuba is likely to be a difficult and time- consuming process. Obama and his advisers must decide which detainees to release, where to send them, and where and how to try the remainder.
Unlike conventional prisoners of war, the Guantanamo inmates were not fighting for a state or wearing a regular military uniform, and were treated as unlawful enemy combatants by the U.S. Guantanamo holds detainees from 30 countries, including two from Malaysia and one from Indonesia. More than 70 percent are citizens of Middle Eastern and North African nations.
The Bush administration divided the detainees into three categories. About 80 were appearing before military commissions or scheduled for trial. They included 14 “high value” detainees whom U.S. President George W. Bush announced in September 2006 had been transferred from secret prisons outside the U.S. to Guantanamo. They were thought to have inside knowledge of al-Qaida and its plans for new attacks.
Among them were Khalid Sheik Mohammed, the self-confessed mastermind of the 9/11 attacks, and two other suspected senior al-Qaida operatives. The CIA admits these three were subjected to waterboarding to extract vital information.
Also transferred to Guantanamo three years ago was Indonesian Riduan Isamuddin, alias Hambali, a leader of Jemaah Islamiah who had fought in Afghanistan and had close ties to al-Qaida. Indonesian police have said that Hambali was involved in the 2002 Bali bombings.
Another 60 of the Guantanamo detainees had been designated for release by the Bush administration. Ironically, the U.S. has said it had problems repatriating them to some countries where it feared they might not be treated humanely or to others, particularly Yemen, where they might not be kept locked up or under adequate surveillance. The U.S. also had problems convincing third countries to take them.
The final category, of just over 100 detainees, was considered too dangerous for release. However, the Pentagon did not plan to try them, either because of a lack of evidence or concern about producing information in court that could compromise intelligence sources.
Almost 780 detainees have been held at Guantanamo since the first arrived in January 2002. More than 500 have been transferred from Pentagon custody and either been repatriated, mainly to Saudi Arabia and Afghanistan, or sent to third countries willing to have them because they were not considered to be a major threat. Nonetheless, U.S. officials say that 18 of those transferred from Guantanamo are known to have returned to terrorist activity while 43 are thought to have done so — a ratio of over one in 10 released.
Two former Guantanamo detainees were shown in a video circulated on Jan. 23 by al-Qaida’s branch in Yemen. The terrorist movement appears to be gaining in strength in Yemen and plans to use the factionalized and impoverished country as a springboard to attack oil-rich Saudi Arabia and the Gulf states while gaining bigger footholds in nearby Somalia and other parts of the Horn of Africa.
One of the detainees in the video, Said Ali al-Shihri, 35, is now described as deputy leader of al-Qaida in Yemen. He is suspected of helping to organize a twin car-bombing of the U.S. Embassy in San’a in September that killed 16 people.
The other former Guantanamo inmate shown in the video was also released to Saudi Arabia in November 2007. Both men completed a Saudi government re-education program for jihadists. It had been held up as a model and the U.S. said it hoped to help fund a similar program in Yemen, since about 40 percent of the detainees still at Guantanamo are Yemenis.
Given the risk of recidivism and other problems, even some U.S. allies are wary of resettling any of the 60 Guantanamo detainees scheduled for release. Australia has refused Washington’s request to take a small group, reportedly Muslim Uighurs from China’s restive Xinjiang region whom Beijing has said are terrorist suspects. China is a key trading partner of Australia and Beijing has reportedly warned Canberra not to take the group.
Europe is divided on the resettlement issue. Portugal, Britain and Ireland appear sympathetic. But Wolfgang Schaeuble, Germany’s interior minister, said that he saw “no reason why someone who is supposed to be too dangerous for America should have to be taken in” by a European Union country.
Michael Richardson is a visiting senior research fellow at the Institute of Southeast Asian Studies, Singapore.