I. Close the Military Detention Facility at Guantanamo Bay

The United States continues to hold some 250 people in military detention at Guantanamo Bay, most of whom have now been in US custody for nearly seven years without charge. There is a growing bipartisan consensus that the continued operation of the detention facility at Guantanamo has not only caused significant damage to America's standing around the world, but has been counterproductive in fighting terrorism. Five former secretaries of state have urged the next president to move quickly to close Guantanamo, and President-elect Obama has committed to doing so.

Closing Guantanamo will not be easy. Merely moving the system of indefinite detention without charge to the United States would not solve the underlying problem. Nor would it solve the problem to transfer detainees to be held elsewhere without charge.

Human Rights Watch has long called for detainees at Guantanamo to be either properly tried or released. The following proposals lay out how to do so in a manner that protects both human rights and national security:

(1)Immediately announce plans to close Guantanamo.

Upon taking office, President Obama should announce his intention to close Guantanamo, lay out a plan for doing so, and set a date for final closure. Such an announcement will signal a clear break with the abusive policies and practices of the last seven years and help garner the international cooperation needed to make the goal of closure a reality.

(2)Review the detainees' files.

The Obama administration should establish an interagency task force (led by the Department of Justice, but with input from the Department of State, the Department of Defense, and the Director of National Intelligence) that is mandated to review the files of all detainees to decide which of them should be charged and brought to trial, and which should be released. 

The Bush administration has long asserted that Guantanamo holds an unspecified number of detainees who are too dangerous to release yet cannot be tried. Because the evidence purportedly justifying these claims has been kept secret, even from the detainees against whom it has been used, challenging these claims has been difficult. Continuing to hold individuals who are not charged with a crime not only damages America's reputation as a nation committed to the rule of law, but helps fuel terrorist recruitment and ultimately harms the effort to fight terror.

(3)Set up a process to ensure that detainees are not returned to torture or abuse.

An estimated 30 to 50 detainees-from countries such as China, Algeria, Tunisia, and Libya-have expressed fears of torture or abuse if returned home. The United States should set up a fair process before a federal court by which all detainees are provided advance notice and an opportunity to contest any planned transfer. Detainees found to have credible fears of abuse should not be returned to their home countries.

(4)Repatriate all detainees who are not slated for trial and can safely be returned home.

The United States should move as quickly as possible to repatriate those detainees who will not be charged with a criminal offense and do not express a credible fear of return.

(5)Negotiate resettlement agreements with other countries, and accept some detainees for resettlement into the United States.

The Obama administration will need to work with US allies to find homes for the detainees who have been cleared for release but cannot be repatriated. As a first step, the United States should agree to resettle some number of detainees into the country. Without this step, it will be extremely difficult to convince other countries to help share the burden. Notably, Guantanamo still holds 17 Uighurs, most of whom have been cleared for release since 2004 yet cannot be returned to China because of fears that they would be tortured upon return. Uighur communities and refugee resettlement groups within the United States have committed to providing housing, language, and job training to all 17 Uighurs. They would be an easy group to quickly-and safely-resettle in the United States.

(6)Transfer the remaining detainees to federal custody for trial.

Detainees charged with crimes should be transferred into the United States for trial before federal courts, which have successfully prosecuted more than 100 terrorism cases since September 11, 2001.