IN my last article I had promised to analyse what President Barack Obama had to say about Guantanamo.
There are two aspects to this part of his speech, the first relating to Guantanamo becoming, in Obama’s words, “a symbol around the world for an America that flouts the rule of law” and the second the effect his call for Congress “to lift the restrictions on detainee transfers from Guantanamo” will have on our region.
Obama’s carefully crafted message was designed to reassure the American public that closing Guantanamo would remove the “stigma” on a nation that took pride in being a “nation of laws” rather than one that flouts the law, would not in the process endanger national security and would save money.
At a time when sequestration was cutting the budgets of government departments, he made the telling point that some $150 million were being spent annually to hold 166 prisoners and that the Department of Defence had proposed a further expenditure of $200m to keep the facility in running order. This, he implied, was money that could and should be saved.
Obama proposed that with the closing of Guantanamo, the prisoners who had to be held could be transferred to high security prisons in the US and reminded his audience that no one had ever escaped from such a facility. Recalling that hundreds of terrorists, many more dangerous than the Guantanamo detainees, had been convicted by American courts, he said that every detainee would have the right of judicial review and that for this purpose the Department of Defence had been asked to designate a venue in the US where military commissions could be set up.
As regards those prisoners whose involvement in terrorism was known but whose trial would be problematic because the evidence against them would be deemed inadmissible in court, he offered no concrete solution but expressed the confidence that “this legacy problem can be resolved, consistent with our commitment to the rule of law.” This relates for the most part to the prisoners against whom evidence was obtained by torture either within the US or during extraordinary renditions. It is difficult to figure out how this “legacy problem” can be resolved.
From Pakistan’s perspective and from the perspective of this region, the most important element of Obama’s speech was the decision to resume the transfer of prisoners from Guantanamo to other countries.
First, he said: “I am lifting the moratorium on detainee transfers to Yemen so we can review them on a case-by-case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.”
The background to this as far as one can gather from press reports is that there are some 57 Yemeni detainees that have been cleared but whose transfer was blocked because of concerns that they would not be suitably handled in their home country. Apparently with the new government in Yemen, the Americans have more confidence that those released will not want to or be able to join the ranks of the terrorists.
Second, he announced the appointment of a new senior envoy at the Department of State and the defence department “whose sole responsibility will be to achieve the transfer of detainees to third countries.” He recalled that some 530 prisoners were transferred in the Bush era and another 67 during his own presidency before Congressional restrictions were imposed.
As was done at that time, one can assume that the new senior envoy will negotiate with the government of the country to which the prisoners are transferred with reference to how these returnees will be treated and what freedoms they will enjoy. There have been frequent reports, triggering Congressional concern, that many of the Afghans released during the Bush era promptly rejoined the Afghanistan Taliban movement and did so after having been indoctrinated by diehard Al Qaeda detainees in Guantanamo. It is my feeling that even while detainees from elsewhere in the Islamic world may secure release easily, Afghan prisoners may have a harder time given the American suspicion that Karzai’s administration and the Afghan judicial system would not enforce any restrictions on the returning detainees.
I believe, however, that whatever the restrictions on the transfer of other Afghan prisoners, this does open up once again the possibility of the exchange of prisoners between the Taliban and the US. Before it collapsed, following the disclosure of what were meant to be secret Taliban-US talks by the Karzai administration, the deal that was being crafted would have involved the release of five Taliban prisoners held in Guantanamo to Qatar — probably to become part of the Taliban negotiating team — in exchange for the one American soldier the Taliban were holding. It was hoped that this prisoner exchange would be followed by a formal Taliban renunciation of ties with international terrorist organisations and even to a commencement in one form or the other of intra-Afghan talks for reconciliation.
While there may be Congressional opposition to the transfer of Guantanamo detainees to the American mainland and to other facets of the Obama proposal, I believe there will be support for the transfer of the five Taliban to Qatar. But will this be enough? The Karzai administration remains adamantly opposed to the use of the proposed Taliban office in Doha for anything other than discussions between the Taliban and the Karzai government. The Americans at the president’s level have endorsed this position in the Jan 11 joint statement.
The question is, will the Americans now be able to get Karzai to change his mind? Alternatively, will they be willing to further jeopardise their current tenuous relationship with Karzai and go ahead with the prisoner exchange? If the Americans want to set the process of reconciliation in motion before the 2014 withdrawal they must, despite the inherent risks, do one or the other because currently it seems that the Taliban factions desiring reconciliation cannot move forward unless this prisoner exchange is effected.
The writer is a former foreign secretary.