Chicago attorney representing Guantanamo detainees discusses complexity of prison closure

Jan. 8, 2009 – Prisoners sit in an 8-by 6-foot cell, built from a wire frame. The cells sit in two rows facing each other out in the open air. They are covered with a tin roof, which traps the heat of the sun. There are no fans or air conditioner provided.

As President-elect Barack Obama takes office, one of his highest executive priorities is to close Guantanamo Bay in Cuba, but the new administration will face difficult challenges on how to process the detainees for trial and possible release.

Jeffrey Colman, a Chicago attorney who has represented prisoners at Guantanamo, said he still has two clients imprisoned there indefinitely. 

One of his client's is a 40-year-old Shiite-Muslim who was born in Iraq. He was turned in because he was an opponent of Saddam Hussain's regime.

Originally he was a school teacher in Iraq, then took a leave of absence because authorities allegedly claimed after 9-11 he was a member of the Taliban, which is predominantly Sunni-Muslims.

He moved to Afghanistan to work at an orphanage.  Authorities turned him in for ransom with no allegations against him.  The only evidence to prove his client was a member of the organization is that he worked at an orphanage, which was funded by an al-Qaeda humanitarian organization, Colman said.

"Guantanamo has become an evil symbol to the world. Closing it would show that the U.S. is going back to its bed rock principles," Colman said.

Colman's firm has represented 19 clients at Guantanamo, and he said prisoners experience extraordinary isolation by not having any contact with their family.  All of the prisoners are Muslim.  There are no checks on conditions or conduct, some prisoners have spent four to seven years in detention, he said.

"There is no question that some of these men warrant charges.  A great number will be released and some will return to their home countries. The trickiest part is to find some country for those who can't return to their home country," Colman said.

Announcing the closure of the detention center is an indication the new administration plans on changing the course of action on foreign policy.

Colman said the new administration will be challenged to find countries for some of these men after Guantanamo is closed. A new administration brings new personnel to face the problems of these matters, they will have almost 250 cases to review, however complex.

"I think he (Obama) is going to close Guantanamo.  I would be shocked if it is open a year from now as a prison," Colman said.

Colman said many activists have set a deadline for the Obama Administration to close the prison by the beginning of March.

Larry Cox the spokesperson for Amnesty International, a human rights organization said there has been a long call for the U.S. government to close Guantanamo and either fairly try or release the remaining detainees.  The human rights organization urges President-elect Barack Obama to announce a date for the closure of Guantanamo, issue an executive order to end torture and support a commission of inquiry during his first 100 days in office.

Colman predicts about 50 of the prisoners would be brought to the U.S. and charged with crimes. They will be put to trial and if there is evidence, be convicted and imprisoned or they would be acquitted and sent home.

In early December the U.S. Supreme Court ruled that detainees have a constitutional right to challenge their detention in regular U.S. courts. 

The U.S. government still declines that Guantanamo Bay is a prisoner war camp because of the Geneva Conventions. Close to 790 have been imprisoned in Guantanamo Bay, currently over 525 men have been released with 55 percent to this date have not had charges filed against them.  

"If these men are the worst of the worst, how in the world is the Bush Administration releasing all these terrorists?" said Colman.

Almost 60 detainees have been cleared for release.

"We should have apologized to these men and their families. We should fight terrorism at every turn, but we should also admit our mistakes," Colman said.

Bob Moss, a retired district judge said the U.S. is now hinting that they are going to do an investigation without any prosecutions.

"Put them into the federal court system, now we have changed the trial method. We need to examine the problems, what evidence will be disclosed and what is not disclosed. The problem with national security is not about where the case is going to be tried, it is about what are we going to do with the detainees," Moss said.

President-elect Obama's key issues while campaigning is that he would "restore habeas corpus" to the detainees, but more than 100 detainees have been classified as not releasable because they pose a threat to national security. Calls to Obama's transition team for comment were not returned.

Scott Silliman, a national security law professor at Duke Law said President-elect Obama wants to close Guantanamo.  He said it would be easier said than done. "Before you close the place, you have to figure out what you are going to do with the detainees," Silliman said.

Silliman said the major problem is that some of the detainees native countries are not willing to take them back under the stipulations given by the U.S. to keep them under surveillance or in maximum security detention, especially because they have never had been charged with a crime. 

The Obama administration will also be challenged on what to do with future terrorists.

Silliman has formerly served as head counsel to the commander of the Air Force.  He said he favors detainees being tried by a military commission of court-marshal, because the trial can be held outside the United States. If the trial were brought to a U.S. court, some of the evidence that was gathered would not be admissible because it was acquired through the means of torture.  He said if Guantanamo should be closed, then the detainees should be moved to the detention facility in Afghanistan, then the responsibility will be shared with another country.

"Americans want to see those responsible for the 9-11 attacks brought to justice and by doing so in a matter that maintains our American values and our claim that we are a nation under the rule of law," Silliman said.