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VII. Conclusions

Human Rights Watch has long called on the US government to close the detention facilities at Guantanamo Bay, and we continue to do so. The Bush administration could shut them down responsibly by providing notice of impending return to the detainees and their lawyers and an opportunity to challenge the transfer, including the nature of any assurances made by the receiving country, before an independent and impartial adjudicator. Notice should include the relevant information needed to make an informed choice, including any records of prior convictions in absentia.

Congress also has a role to play. It should promptly enact legislation to restore habeas rights for detainees and provide federal court jurisdiction over transfer claims. Legislation pending in both the House and Senate would do just that.⁹⁰

While the majority of Guantanamo detainees will avoid any court process that will slow their return home, court review of the transfer decision will insert an invaluable protection for those who can demonstrate a credible fear of torture or other abuse.

It is also smart policy. The closing of Guantanamo provides the United States an important opportunity to rebuild its moral authority and international good will. It should not squander this opportunity by unilaterally sending detainees back to places with known records of torture and other abuse, without first giving detainees a chance to object to the transfer, and have their claim heard.

The US will ultimately have to resettle individuals who successfully challenge their transfer—an uphill struggle no doubt, but not an impossible one. In early August the United Kingdom government shifted course and agreed to resettle five non-citizens being held in Guantanamo who had previously had legal residency in the UK, most of whom cannot be returned to their country of origin because of fears of torture.⁹¹ The US, European Union, and other countries now need to work together to find placements for other detainees entitled to release who may not have a claim of legal residency but cannot be returned to their home countries.

The US also needs to provide full access to the United Nations High Commissioner for Refugees to review files and conduct refugee status determinations at Guantanamo so that it will be able to help find placements for those detainees who qualify for refugee status.

It is true that detainees who challenge their transfer will be extending their continued detention at Guantanamo. But they should be allowed to make that choice. Otherwise, the process of closing Guantanamo could end up condemning the detainees to a fate even worse than Guantanamo, and the US to renewed criticism and ill-will.

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