Jonathan Power: Obama’s Inheritance and the Gitmo Problem

By Jonathan Power

The courtrooms of America sometimes take us by surprise. Last week, Charles “Chuckie” Taylor, the son of the former Liberian president and notorious warlord, Charles Taylor, was sentenced in a Miami court to 97 years in prison for torture. It was the first time that an American court had applied a law passed in 1994 allowing the prosecution of citizens who commit torture overseas. (Taylor was born in the United States, but then moved to Liberia to join his father.)

Is there now one law in America for those who commit torture overseas and those who commit it at home with the authority of government? Perhaps not for much longer. In a recent television interview, President-elect Barack Obama said that his designate for attorney general, Eric Holder, would investigate whether some senior members of the Bush administration should be prosecuted for their part in torture, although he said that his belief was that “what we have to focus on is getting things right in the future.”

Also, last week, Obama said that he had given his new appointees to top intelligence positions a clear charge to restore the nation’s stance on human rights. “Under my administration the United States does not torture.” Obama should also have reminded his audience that it was during the presidency of Ronald Reagan that the U.S. helped push for the United Nations to agree to a legally binding treaty against torture, and then propelled Congress to rapidly ratify it. (It is this treaty, mind you, that provides the legal underpinning for the prosecution of Taylor.)

Still, even the Bush administration has done its bit for some aspects of international law. For years, it waged war against the creation of the International Criminal Court (ICC), created to try those charged with crimes against humanity. But, in recent years, Washington has appeared to change its position—at least with regard to the court’s jurisdiction over others. The United States has supported the seizure by the ICC of a number of African warlords; most recently, it has encouraged the ICC to prosecute (for the first time) a head of state—the president of Sudan, Omar al-Bashir.

Bush seems to have put to one side his fears that the ICC might put United States civilians or military personnel in its sights. (The statutes of the ICC make clear that it will only prosecute when domestic courts fail to act and even if the U.S. now signs up it cannot act retrospectively.)

Surprisingly too, the Bush administration has quietly supported the UN Security Council, working closely with the body to act on grave issues. Even though the United States abstained last week on a Security Council resolution ordering the Israelis and Hamas to agree to a cease fire, Secretary of State Condoleezza Rice made it clear that Washington was not against the resolution, only its early timing. The U.S. abstention was considered a shot across Israel’s bow.

But there was total unanimity in the Security Council following the Mumbai killings when it was declared that the Pakistani Jamaat-ud-Dawa was a front for the militant movement Lashkar-e-Taiba and that sanctions against it should be applied. This added to the pressure on the Pakistani government to arrest suspected militants. Likewise, last Tuesday, the Security Council voted (again unanimously) authorizing member states to conduct land and air attacks on pirate bases in Somalia.

Often overlooked is the fact that the eight years of the Bush administration have been a relative flurry of activity in the UN: 25 percent of all Security Council resolutions (during the body’s entire history) have been voted on in this period; most passed without dissent.

A test case for the United States on international law will be the Obama administration’s willingness to close down Guantánamo. The world never believed President Bush when he said last year that he wanted to close it. But now, with Obama pushing hard for that reality, Western countries will have to step forward and agree to take many of the prisoners the U.S. wants to release.

But Obama will still have the so-called “hard core” terrorists on his hands, and public opinion does not appear to want them brought to the mainland and prosecuted in domestic courts. The fear is that too many of them will be acquitted for lack of evidence or because they were tortured, then will be set free only to plan another atrocity.

Maybe part of the answer would be to bring a domestic court to Guantánamo to replace the military court. If convicted, they can be moved to incarceration in the United States penal system, but with their rights of appeal intact.

If freed, they can be refused entry to the United States and be deported to the country of their choice. If no one will take them, why not give them a house and a plot of land in Guantánamo and wait until some country does?

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Jonathan Power is a syndicated columnist and a contributing editor of Prospect magazine, London. His most recent book is Conundrums of Humanity (Martinus Nijhoff, 2007).

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