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Law prof, ND group react to Gitmo action

Emma Driscoll | Thursday, January 22, 2009

As one of the first moves of his presidency, President Barack Obama halted prosecutions at Guantanamo Bay, and the Associated Press reported that Obama would sign an executive order Thursday closing detention facility in Cuba within a year.

Professor Mary Ellen O’Connell, a Notre Dame professor of international law and a specialist on the law of war, said she was pleased with the action.

“This was very good news, very good news indeed. The military commissions process that was set up at Guantanamo Bay is widely considered to have been seriously flawed, very defective … so halting those commissions proceedings now was a very important move by the president to get the United States back into good standing with the rest of the world,” O’Connell said.

Senior Catherine McKinney, the president of Human Rights-ND, was extremely pleased with the announcement as well.

“It’s a great step in the right direction on the road to close Guantanamo,” McKinney said.

Both O’Connell and McKinney agreed that the timing of the announcement indicates that the Obama administration will place an emphasis on human rights.

“He sent such a strong signal that he cares about fundamental human rights, that he understands how problematic Guantanamo Bay is for human rights and for America’s reputation, and the fact that he moved quickly was very strong … that he is going to be decisive with respect to those important obligations and values,” O’Connell said.

McKinney agreed the urgency of this announcement sends a message.

“Generally what happens in the first hundred days or even first hundred hours of any administration or regime sets the tone for the time in power,” McKinney said. “It was a very powerful stance on human rights and how it seems this administration is going to be protecting them on multiple levels.”

Ultimately, O’Connell and McKinney expect that the detention center will be completely shut down and they hope that this happens sooner rather than later.

“I think [shutting down the detention center] is at the end of the road that has been sort of started with this announcement,” McKinney said. “I come from the position that sooner rather than later it should be, but I understand that [the Obama administration is] working through a lot of other issues as well at this time.”

O’Connel agreed.

“It’s important that we move expeditiously – within the next few months to close Guantanamo Bay,” she said. “I’m sorry to hear that he’s been getting advice to move slowly. … I think the people who have been advising him … may not be sufficiently expert as to what America’s legal obligations are.”

O’Connell said she sees a need for international law experts to advise the president, calling the advice oft-employed constitutional or criminal law experts “inadequate” when it comes to international law.

“Unless you know the treaties, the customary law rules, and the human rights principles that are at stake, you may be giving the president the wrong advice or inadequate advice,” O’Connell said.

If the Obama administration does dismantle the detention center, it will need to consider what to do with the people who are currently detained.

Approximately 250 people are currently detained at Guantanamo Bay – down from a peak of almost 800 – and some of these people do not have any charges or evidence against them, O’Connell said.

“We simply have been unable to convince their home countries or the places we took them from to take them back or it is not safe for them to be returned,” O’Connell said.

Some of the evidence against people detained at Guantanamo has been obtained from “unlawful methods” and cannot be used in courts, O’Connell said. “If we have no usable credible, lawfully obtained evidence against them, we cannot conclude that they are guilty of a crime. Not in our system.”

In situations when credible evidence cannot be found against a detained person, O’Connell believes that these people must be released back into the United States.

“The only solution I see for individuals in that category is to repatriate them to the United States. It will be very bitter for some people to contemplate, but that is the cost of creating the prison at Guantanamo Bay,” O’Connell said.

“We’ve made a terrible mistake in ever using methods of torture and abuse, and we may have to pay a high price for that mistake,” she said.

During the period that the administration has halted the prosecutions, O’Connell and McKinney said that the proceedings will be reviewed.

“They’re going to review if these are fair or just or even effective ways to prosecute these prospective terrorists. I think after that is done they’re going to create a more effective mechanism for these prosecutions … there won’t be a need for Guantanamo,” McKinney said.