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As the world waits for examples of the ways the Obama administration is going to distance itself from the exiting Bush administration, his transition team confirmed on Monday that they will follow through on Obama’s promise to close Bush’s controversial prison camp located at the US Navy base in Guantánamo Bay, Cuba. Senior Editor Paul Jay spoke to constitutional law expert Michael Ratner who expressed his approval for the news but couched that support in an explanation of the variety of other tough decisions that accompany the decision to close the base. Most of the issues hinge around the fates of those currently imprisoned at Guantánamo, both those who will face prosecution and those who will not. Michael expresses his desire that those who the US does not plan to charge, a group that represents the vast majority of the inmates, should be released immediately. Those remaining, Michael believes, should be tried in civilian courts and not by military commission. This is a move that human rights groups and Michael himself have been advocating for a variety of reasons, one of which has been that civilian courts–unlike military commissions–do not admit evidence obtained under the use of torture.

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Obama confirms closure of Gitmo

PAUL JAY, SENIOR EDITOR, TRNN: As the world waits for change we can believe in and are waiting to see just what kind of change Barack Obama actually plans to bring as president, his transition co-chair, John Podesta, announced that Obama’s promise to close Guantánamo Bay is going to be filled early in the administration—some people have even suggested on his first day. Guantánamo, as everyone knows, is where non-US citizens detained in the so-called war on terror are being kept. Joining us from New York City to discuss this announcement is Michael Ratner, former president of the National Lawyers Guild and current president of the Center for Constitutional Rights, and, for full disclosure, a member of the board of The Real News Network. Welcome, Michael.


JAY: So, Micheal, tell us exactly what Obama’s promised, and then let’s get into the argument.

MICHAEL RATNER: Well, he certainly promised to close Guantánamo. It’s been a campaign promise since the beginning. That’s one part of the promise. The second part of the promise is to the extent he’s going to have people tried if there’s some there that need to be tried, according to the government. He has said he rejects military commissions. Those are two parts of the promise. I think getting from closing Guantánamo to actually seeing the last person at Guantánamo isn’t going to happen in a day, but I obviously like the idea that John Podesta is saying he will close Guantánamo.

JAY: They made a big thing about how it was going to be done quickly, on his first day, and all of that. There’s a little bit of backtracking now, where we’re hearing it’s going to be very complicated. But let’s get into some of the counterarguments to closing Guantánamo. I guess one of the principal arguments is going to be that if you follow the rules of evidence in American courts, many, if not most, of the people in Guantánamo can’t be convicted. And within the American system, even on technicalities, courts will allow people who everyone knows committed a crime to go free for the sake of defending the process and defending presumption of innocence. So people argue we can’t apply these kind of standards in this kind of situation. How do you answer that?

RATNER: Well, I’ll answer it in a couple of ways. One is: what we should be focusing on first, in terms of closing Guantánamo, is getting the people out of there, back to their home countries or to places where they can be refugees, of the bulk of the people at Guantánamo. There’s 255 people there. The current administration claims that up to 80 might need to be tried. The number—and I have no idea how good their evidence is or what they really know, because everything we’ve seen so far has been essentially false—but let’s say the number is two dozen. What we ought to focus on right now is getting the other 240 people out of there. And what we need to do and what the administration has to do is make deals with the home countries that those people are from, or, if they can’t be repatriated to their home countries, get them asylum as refugees in other countries. So to say that it’s going to be difficult by focusing on the few cases where there might or might not be difficulties—which we can discuss—is really looking at the telescope the wrong way. What we need to be looking at is the right way and get the bulk of the people out of Guantánamo immediately. So that’s one section of people.

JAY: Now, does the military recognize or agree that in fact the bulk of the people have been essentially illegally detained?

RATNER: Yes, I think they do. I mean, “illegal,” I don’t think they do that. They claim they were enemy combatants in most cases; some of them, they’re no longer enemy combatants. They never like to say that someone was picked up wrongly, although many, many of those people were. One of the reasons we know the number roughly is because the administration itself only put forth the number of 70 or 80. That’s a huge number, but it’s not 255. So what about these other guys? So the other guys should be released in some fashion to their home countries or to a refuge country.

JAY: I’m actually not sure where the case of the Chinese waiters ended up. Are they still being held? Or did they ever get let go?

RATNER: The Uyghurs are a very important case. Those are 17 people from Western China who were picked up in Afghanistan who had nothing to do with terrorism, nothing against the United States ever, and they’re no longer enemy combatants, even according to the United States. But even though that determination was made a couple of years ago, they’re sitting in Guantánamo because the US has made no effort to take them to another country or really push another country to take them.

JAY: Now, why another country? If the United States was responsible for illegally detaining these people, and they were picked up—. I know the military tribunal found them not guilty, and I think there’s a case headed towards the Supreme Court. I don’t know whether it’s been heard yet, where the federal court decided that there’s no right to hold them. On the other hand, the presidential order said that they should be held. And at the time, the federal court said, if I understand it correctly, you can’t overrule the president. So there’s the whole issue of what is presidential authority here. But in the case of the Uyghurs, and perhaps for others, they don’t want to go back to China ’cause they’re afraid of persecution. As far as I know, they can’t find any other country to take them. But why doesn’t the United States owe them refuge, given that it’s the United States that put them there in the first place?

RATNER: Yes, of course the United States owes them refuge. I mean, they were picked up wrongfully; they were held wrongfully in Guantánamo for years. If they can’t find another country that wants to take them or where they want to go, they should be brought to the United States. And to catch you up on the law, that’s exactly what happened. In the court, the original judge, which heard the case a month ago, said that they ought to be brought to the United States. The US government immediately appealed to the court of appeals, saying the judge has no authority to bring them into the United States, and even saying, beyond that, “In this so-called war on terror, we have a right to hold, really, anybody we want for as long as we want, and no court can tell us differently.” So that case looks like it’ll be argued on November 24. We’ll see what happens. We had actually set up homes for the Uyghurs, etcetera, in Washington, where they could have been taken. And, of course, they’ve been there seven years and they should be gotten out.

JAY: Have we heard anything from the Obama camp on the Uyghur case?

RATNER: No, nothing on the Uyghur case. We’ve really heard nothing about how they plan to deal with this issue, because let’s say the bulk of the people, let’s say 255, let’s say 230, 240, have to get into other countries or into the United States or somewhere if they’re going to close Guantánamo. Are they thinking of just bringing them, the first day, on big airplanes to a facility in the United States, a prison, and then processing the people there, and then technically closing Guantánamo that way before they can get the people out? We don’t know. We do know that there is still the first question you asked me about this, which I do want to address, this question of the dozen or so people who the US alleges may have been involved in terrorist acts: What do you do with those people? What do you do? Well, the first thing you do is you don’t try them by military commissions. If you see all the demands of human rights groups now, it’s that these people should be tried in federal courts. If they’re going to be tried at all, try it in federal courts. Military commissions allow evidence of torture, but they’re not reliable, they’re an embarrassment in the world, they’re everything you shouldn’t do. And then, getting to your question, well, what do you do if you only have evidence from torture? Well, you’ve got a big problem, a huge problem. But, on the other hand, I’m not sure that’s the problem. I’m not sure that if they have a person who they think is involved in one of these acts that they have, that they don’t have other independent evidence that isn’t available from torture, at least from the key conspirators.

JAY: So if this was an American murder case in an American court—it could even be a serial killer—if the evidence is really bad and tampered with or a bad warrant, it’s not out of the question an American court will let someone go who everyone within the American system knows is likely guilty. But to defend the integrity of the process itself, they let the person go. Are you human rights groups advocating that level of American law?

RATNER: I think human rights groups are saying you either have to try people or release them; you either have to charge them and try them or release them. You don’t have some generic right to hold people because you think they might be guilty of something and because the constable botched up the case, as it were, or because the government didn’t—it’s a lot more than that, because they tortured the heck out of people. You know, I think that’s a remote possibility. I don’t suspect that’s what’s going to happen here, and I certainly wouldn’t, you know, pin the closing of Guantánamo and the fact there might be a couple of very, very difficult cases. And, after all, we’ve been successful in trying a number of people. We tried Moussaoui. We actually got Lindh to make a guilty plea. Lindh was also tortured, you should understand. He was the so-called American Taliban picked up in Afghanistan who was tortured badly. They could have never really gotten a successful trial with Lindh, at least with that evidence. And so what there was is they negotiate a guilty plea. I mean, that’s certainly a possibility here. But again I want to stress that the main issue around closing Guantanamo right now is getting out the 230, 240, even more, getting them back to their countries, getting asylum for the people who can’t go back to their countries, or bringing people here. That’s what has to be done.

JAY: Well, certainly Obama has raised the bar himself as this is a litmus test of judging whether he’s going to undo some of the abuses of the Bush administration. So we’ll be looking forward to see how quickly and how he executes on this promise. Thanks so much for joining us, Michael.

RATNER: Thank you for having me, Paul.

JAY: And thank you for joining us on The Real News Network. Don’t forget the donate button.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.