Although President Barack Obama on Thursday ordered the closing of the prison at the Guantanamo Bay, Cuba, naval base within a year, local lawyers representing detainees expressed impatience with any further delay in a case that has dragged on for more than 4 1/2 years since the Supreme Court first ruled the men had a right to counsel and a day in court.
Earlier in the week, Obama stayed the roughly 200 habeas petitions pending in federal court as well as the military commissions set up at the naval base to prosecute those charged with crimes against the U.S. while his administration reviews each case individually to determine if detainees should be released, transferred or prosecuted.
John A. Chandler of King & Spalding and a team of Sutherland lawyers represent six Yemenis who've been imprisoned at the base for seven years without being charged. The legal team filed habeas petitions for their clients almost four years ago, in April 2005, which have yet to be heard while the Bush Administration has wrangled with the detainees' lawyers over the larger issue of their clients' right to habeas corpus. (Chandler moved to King & Spalding last November after a career at Sutherland, but has stayed on the case.)
"I'm quite happy that Obama has done something. I'm quite unhappy that he's proposing a year to close down Guantanamo," said Chandler.
Emory University law professor Charles A. Shanor, a constitutional expert, took a more moderate view, pointing out that Obama must tread cautiously in a matter that became a political minefield years ago.
The Obama administration must avoid the risk of releasing detainees who might commit hostile acts against the U.S., which means making sure any potentially militant jihadists in the group are returned to countries that will keep an eye on them, said Shanor, who's on the board of the law school's international humanitarian law clinic with Chandler.
The clinic has provided support to Charles D. Swift, the former U.S. Navy lawyer who represented Salim Hamdan, Osama bin Laden's former bodyguard and driver, and is now a faculty member at Emory Law School.
Shanor added that Obama's executive orders leave room for the prison to be closed in far less than a year. He noted that Obama signed the order on the second day of his presidency, signaling that resolving the situation at Guantanamo is a priority for his administration.
"A year may sound like a reasonable period of time, but it's way too long for men in their eighth year there who've never been charged with a crime and who never will be charged with a crime -- and who have a place to go and want to go there," said Chandler.
Two of Sutherland's detainee clients were cleared for release in February 2008, but are still at Guantanamo, said Chandler and Kristin B. Wilhelm, a partner at Sutherland who also represents the detainees.
Two others are on hunger strikes and suicidal, they said.
Chandler said that 94 of the 245 men remaining at the base are from Yemen -- including the six that he and Wilhelm are representing. All of the men remaining at the base, including the Yemenis, are from countries with which the U.S. has weak diplomatic relations. The government has said in the past that it cannot repatriate the Yemenis for fear of their own safety.
But Wilhelm pointed out that Hamdan, the first person charged and convicted under the Military Commissions Act of 2006, was returned to Yemen last fall and is now a free man.
Hamdan, who admitted to being Osama bin Laden's bodyguard and driver, was convicted of providing material support to al-Qaida, but not of terrorism. He was sentenced to 5 1/2 years in prison, with five years of his Guantanamo imprisonment credited as time served. After serving the last six months of his sentence in Yemen, he was released in December.
"Our men at Guantanamo are quite happy that Hamdan is home -- and quite upset that he's home. He's been convicted. They've never been charged. He's home. They're not," said Chandler. He added that Obama could clear more than a third of the men from the base immediately by sending the Yemenis home.
"Take away the two or three who've been charged with something, and all the rest should be on a plane tomorrow," he said.
Shanor said it was prudent for the Obama administration to conduct its own careful individual reviews, since the threat of terrorism is such a charged issue in the United States, and he predicted that this can be done in far less than a year.
He made a comparison to the "red scare" after World War I, where the U.S. detained hundreds of citizens as suspected communists. A lawyer managed to review about three-quarters of the thousand cases of suspected communists in a matter of weeks, said Shanor.
"Once he begins conducting reviews of who's detained down there, I believe he'll conclude that the vast majority of men that are there do not need to be detained," Wilhelm said.
Wilhelm said Hamdan's repatriation is what prompted two of the Sutherland clients to go on hunger strikes in the fall. She said that Guantanamo personnel did not inform the Sutherland team of the hunger strikes or that one was being force-fed until earlier this month.
"Closing Guantanamo in a year may seem a reasonable time period to many lay people and administration people. We're talking about men who've already been held for seven years though," she said.
Wilhelm, who's made more than a dozen trips to Guantanamo over the years, advocated that the Obama administration improve conditions at the base if it really does take a year to move all the men out.
"It's nice that they're acknowledging that international law and the Geneva conventions apply," she said, adding that she hopes the administration will act to improve conditions so that they no longer violate the Geneva conventions.
She said that Camps 5 and 6, where most of the remaining detainees are being held, were built in the last two years and are primarily for solitary confinement, modeled on the Supermax prison. Solitary confinement, she said, violates the Geneva conventions.
Detainees are not allowed to interact in communal spaces, she said, and the cells are miniscule. "Even the exercise space is lacking. To me, they look like dog pens -- dog runs, really," she said.
