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  The Last Days of Guantanamo: An American Nightmare Could Soon End

The Last Days of Guantanamo An American Nightmare Could Soon End

By Matthias Gebauer, John Goetz and Britta Sandberg

Part 5: The End of Guantamo

But now the end of the Guantanamo system is in sight. "The big question is how can we put an end to these seven years of failure?" says military law expert Eugene Fidell, a visiting lecturer at Yale Law School. He no longer believes that Obama will point to a way out of the dilemma on his first day in office. "I think Obama will first suspend the military commissions system to freeze the procedures," says Fidell.

Like many other legal scholars, Fidell divides the remaining 255 prisoners into three groups. The first group, estimated at 50 to 80 prisoners, consists of those whose release was already approved by the administration of President George W. Bush but who cannot be sent home because they are likely to face torture or repression in their native countries. They include 17 Chinese Uyghurs, as well as Algerians and Libyans. Constitutional law experts say this is purely a diplomatic issue. Human rights organizations and the US government are currently trying to convince other countries, including some in Europe, to accept the detainees.

On Dec. 11, the Portuguese Foreign Minister Luís Amado wrote: "The time has come for the European Union to step forward. As a matter of principle and coherence, we should send a clear signal of our willingness to help the US government in that regard, namely through the resettlement of detainees. As far as the Portuguese government is concerned, we will be available to participate." His statement indicated it is now possible a solution will emerge. The acceptance of some of the detainees by European countries could become an inauguration gift of sorts for Obama.

Soon after, Germany became the second EU country to signal that it didn't want to be responsible for a failure to close Guantanamo. A spokesman for the Foreign Ministry confirmed Monday that Foreign Minister Frank-Walter Steinmeier had ordered his staff to research the legal and political issues surrounding the possibility of Germany taking in former Guantanamo prisoners. A government spokesperson said the country is considering taking in Guantanamo inmates who have not been charged in the US and who have become stateless or are threatened with torture or persecution if they return to the countries from where they came. At their most recent meeting, however, the federal interior minister and his counterparts at the state level agreed that no concrete offers would be made on the issue until a European agreement can be reached on taking in former Guantanamo inmates.

Meanwhile, the second group encompasses all those who could be indicted based on existing evidence: 80 prisoners, according to the Bush administration, but no more than 50, in Fidell's assessment. Morris Davis, the former chief prosecutor, estimates this number could even be as low as 25 to 30. The presumed masterminds of the Sept. 11 attacks, among them Khalid Sheikh Mohammed, are part of this group.

"These cases will be prosecutable in US Federal Courts," says Fidell. "We are used to dealing with terrorism cases in these courts." He notes that federal courts already have provisions that allow them to hold closed hearings in the even there is truly classified information that could be vital to national security. In Fidell's opinion, not even a reformed military court system would be an option for Obama. The term "military commissions," he notes, already triggers "allergic reactions" throughout the country now.

The third group in Guantanamo is the most problematic, because it includes prisoners against whom there is insufficient evidence for a trial. Nevertheless, most of them are people no one wants to release, because they are believed to pose a risk of committing future attacks. The legal basis for the Guantanamo military tribunals made it possible to hold these prisoners indefinitely, or at least for as long as the war on terror continues. It is still impossible to predict how Obama will propose to solve the problem of preventive detention.

And how will American federal courts deal with statements made under torture?

"There will be a big debate around the torture issue," Fidell predicts. In the end, he believes that the courts could be forced to take the approach once taken with Al Capone. When the courts were unable to convict Capone on charges of murder and extortion, he was sentenced for tax evasion. "Maybe some people will wind up getting prosecuted for things other than 9/11," Fidell says.

This also applies to Khalid Sheikh Mohammed, one of the three men who the CIA would later admit it had submitted to the practice known as "water-boarding." The method, probably approved by Bush himself, in which the prisoner is made to believe that he is about to drown, is considered torture.

Ironically, it is possible that the confessions of the man who confessed the most of all the Guantanamo detainees -- the one charged with masterminding the Sept. 11 attacks -- could end up being irrelevant in a US federal court.

There is, however, another path available to the courts. An indictment was also filed against Mohammed back in 1996 when he and his nephew, Ramzi Ahmed Yussuf, were accused of plotting to blow up 12 American commercial airliners over the Pacific Ocean. Mohammed could be convicted on those charges, after all. Obtaining that conviction, however, would not have required abducting him, torturing him and bringing him to Guantanamo.

Translated from the German by Christopher Sultan