A shackled detainee is escorted to an annual review board hearing at Guantánamo Bay
When it comes to former detainees of the Guantánamo Bay prison, the Obama Administration is discovering that out of sight is certainly not out of mind. Since the President's decision to shut down the controversial holding center for terrorism suspects, not a week has gone by without a number of former inmates making headlines — and, from the U.S. perspective, for all the wrong reasons. The cases are a virtual Rorschach test of where you stand on the to-close-or-not-to-close-Gitmo debate. (See pictures from inside Guantánamo Bay.)
Earlier this week came the release of a former detainee, Ethiopian native Binyam Mohamed, in Britain, an event that came with the by now familiar alleged horror stories of rendition and torture. For the anti-Gitmo crowd, this was proof positive that the prison is an abomination and that many, if not most, detainees should be released.
Next came a Washington Post investigation into the life and death of Abdallah Saleh al-Ajmi. Upon his release in November 2005 after four years at Gitmo, al-Ajmi became a suicide bomber, eventually driving an explosive-laden truck into an Iraqi army base near Mosul last March, killing 13 Iraqi soldiers and injuring many more. This, exclaimed the pro-Gitmo group, was proof positive that detainees should not be released. (See pictures of prison life inside Baghdad's Camp Cropper.)
Then an appeals court in Paris overturned convictions against five former detainees who had been handed over to France in 2007 and then tried and jailed on terrorism-related charges. The court ruled that the men had been convicted on the basis of intelligence gathered during interrogations at Gitmo — and that such intelligence failed to meet French standards for permissible evidence. The court said there was no other proof that the men had conspired to commit terrorist acts.
That one could cut both ways, says Vijay Padmanabhan, a visiting professor at the Cardozo School of Law and former counsel to the State Department on detainee issues. On one hand, it suggests that releasing dangerous people from Gitmo "poses some threat they could return to terrorist activity." On the other hand, the French court demonstrated that "other countries are unable to use evidence procured in Guantánamo, which may hamper, not help, our ability to detain people in the long run." Padmanabhan believes that "ultimately, the big picture here is Guantánamo is an unsustainable model."
Nonetheless, the French court's judgment points to a key difficulty the Obama Administration will face as it wrestles with how to deal with Gitmo's 245 remaining detainees. The plan is to try the hard-core terrorists in federal courts, but the Bush Administration's authorization of legally questionable interrogation techniques at the prison now gives many detainees a get-out-of-jail card. "Anytime you try to use criminal courts to prosecute, there's a good chance they're going to be acquitted," says Padmanabhan.
There's also the logistic conundrum of what to do with detainees exonerated by federal judges after their cases have been reviewed: 20 such men are technically free but remain at Gitmo because the Obama Administration has not yet been able to arrange their transfer to other countries. These include 17 Uighurs from western China; human-rights activists say they should not be released to China because authorities there would probably imprison them.
Eugene Fidell, president of the National Institute of Military Justice, says the weekly drip-drip of controversy and embarrassment over Gitmo is "part of the aftermath of the arrangements put in place — and legal and political risks the government took — under President Bush." But he doesn't expect the Obama Administration to backtrack or even slow down on plans to release detainees. "I don't see why, as we have known for some time that other countries to whom we release people may be either unwilling or unable or both to put and keep them in custody," he says.
If anyone had any remaining doubt about Obama's commitment to closing Gitmo, it was put to rest by Attorney General Eric Holder, who visited the prison this week and came away impressed by how well it was being run. He acknowledged that it would be difficult to close — but added that he's still going to do it. "It's going to take us a good portion of that time to look at all of the files that we have to examine, until we get our hands around what Guantánamo is, and also what Guantánamo was," he said. As for torture, the Attorney General said he saw none of it. "I did not witness any mistreatment of prisoners," he told journalists. "What I saw was a very conscious attempt by these guards to conduct themselves in an appropriate way."
And what of Mohamed, the first detainee released under the Obama Administration? He's expected to apply to remain in the U.K., but there's some confusion about whether or not British authorities will monitor his movements. Matt Miller, a spokesman for the Department of Justice, told TIME in an e-mail, "We worked with the British government to address both countries' concern about the threat he posed, and while we won't comment on the security measures the British government will take, we wouldn't have been in a position to transfer him unless both countries' security concerns were adequately addressed."