By Swadesh M. Rana
America’s European partners in its war on terror are not committing on when or whether to take in any detainees from Guantánamo. “There was nobody very hot about this, that’s perfectly true,” said Czech Foreign Minister Karel Schwarzenberg on January 26, after a meeting of the European Union. His nation holds the rotating presidency of the 27 member EU which includes 21 of the 26 members of NATO.
Austria is against taking any released prisoners. The parliament of Finland is split on the issue. Denmark would need to change its asylum laws to accept any detainees. Sweden sees no political or national security benefit in admitting them. Poland has no experience in dealing with this kind of prisoners. Italy and Spain would consider a U.S. request only if endorsed by the EU.
European opposition to this plan is vociferous. “I do not understand why we give the impression that Germany needs to accept prisoners. Guantánamo was established by the U.S. We did not run it. We did not use it,” says Wolfgang Bosbach, deputy leader of the Christian Democrats.
“Don’t forget these inmates are not kittens-it’s a risk for us to bring them into Europe.” says the Dutch Foreign Minister, Maxime Verhagen. London has already made a “significant contribution,” said U.K. Foreign Secretary David Miliband. England has already accepted nine of its citizens and six of its residents formerly imprisoned at Guantánamo.
France has found little support for its plan to lead an EU fact-finding mission to Guantánamo to ascertain the background of the current detainees and assess the security risks in accepting at least 60 persons who, while they face no charges in the United States, are likely to be tortured or persecuted if returned to the countries of their origin.
Most notable are the 17 Chinese Muslim Uighurs who fled western China and were picked up in Pakistan on suspicion of undergoing terrorist training. Others inmates from Algeria, Azerbaijan, Chad, Somalia, Syria, and Tunisia picked up in Afghanistan or Pakistan for alleged links to Al Qaeda or Taliban also wait in a limbo.
After clearing these inmates for release on grounds of insufficient evidence for prosecution and of little value for intelligence gathering, the Bush administration’s efforts stalled. They got nowhere in finding them asylum on humanitarian grounds in part due to U.S. demands that receiving nations keep them imprisoned for a period of time then monitor them closely (and intercept their communications) when released.
Between 650 to 700 detainees from 40 countries have passed through Guantánamo since its establishment in January 2002. By the end of 2008, 355 had been released into the countries of their origin and eight from China were granted asylum by Albania.
But this often-repeated statistical tally says nothing of the “fewer than 100 hard core detainees” held in “undisclosed locations.” Where are they? Did they pass through a security risk assessment at Guantánamo before being relocated to other prisons in the United States or outside? If so, then logic dictates that Guantánamo’s current inmates are not a security risk for domestic release in the United States. If not, then why would Europeans grant them asylum when the United States itself is wary of doing so?
The Department of Homeland Security granted the Algerian detainee Ahmed Belbacha a hearing on his application for U.S. asylum, for Belbacha fears that he will be tortured or even killed if he goes back to his home country. However, the granted hearing was not accompanied with permission to attend the mandatory in-person proceeding.
A U.S. federal court ordered the Bush administration to release domestically the Chinese Uighur detainees for whom the government had failed to find another placement. The government appealed the ruling, and these men are still in detention among the 245 remaining Guantánamo inmates.
Of the 245 prisoners, 100 are from Yemen and 45 from Afghanistan. Another 100 are nationals or residents of Algeria, China, Chad, Pakistan, Palestinian Territories, Somalia, Syria, or Tunisia. The harder it becomes for the State Department to negotiate their return, the greater the tendency of the inmates to protest with hunger strikes or turn militant. “What we are left with are more of the hard-core bad actors who have a greater capacity to misbehave and conduct assaults on the guard force,” says Rear Admiral Mark H. Buzby, commander of the joint task force running the network of prison and interrogation sites.
For the EU, humanitarian concern alone is apparently not an irrefutable reason to let in terror suspects, especially ones detained for so long without trial, then cleared for release in other countries due to insufficient evidence for prosecution.
Is there a real security risk? The Pentagon estimates that 11 percent of the released detainees are joining the ranks of fighters. Roughly half of them had no history of links to Al Qaeda or hostility to the United States at the time of their capture and detention. Apparently, the other half get counted only when they resurface like Guantánamo badge holder #372, who was released last year in Saudi Arabia and resurfaced as Said Ali al-Shihri, the deputy leader of the Al Qaeda branch in Yemen.
For the Obama task force charged with planning the closure of Guantánamo within a year, the EU’s collective unwillingness to accept any detainees is a diplomatic quagmire.
Either they must find an acceptable set of principles on granting asylum to non-national terror suspects captured and detained in a foreign country (for an act of terror on a foreign soil). Or, they can pursue bilateral negotiations on a case-by-case basis with a request for asylum emanating from the detainee himself.
Yet, given the Schengen agreement on border-free travel that applies to most of the EU and many other European countries, any such arrangement would almost certainly require a Europe-wide legal framework.
What about Australia, a staunch non-European supporter of the war on terror? Unlikely. Even Malcolm Turnbull, the opposition leader, echoed Acting Prime Minister Julia Gillard’s reservations over taking any more Guantánamo detainees. Said Turnbull: “It would be difficult to imagine the circumstances in which any claims on humanitarian grounds should take priority over the many applicants for humanitarian entry currently awaiting approval.”
Guantánamo will soon close and its remaining occupants must be released somewhere. But where?
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Swadesh M. Rana is a senior fellow at the World Policy Institute and the former chief of the Conventional Arms Branch at the United Nations Department of Disarmament Affairs.