US President Barack Obama has given the go ahead for trials to resume at the Guantanamo Bay detention centre in Cuba. But critics accuse him of going back on his election pledge to close the prison within a year. A conversation with Geert-Jan Knoops, a Professor of International Law, who has advised Obama issue.

By Richard Walker, Amsterdam

What is your reaction to this announcement?
It’s a victory for political compromise and a defeat for international law, although the decision was widely criticised by Democrats as well as Republicans. What’s striking is that President Obama in two years actually broke a campaign pledge – to close the detention facility in one year. A lot of people voted for his presidency exactly because of his promises concerning Guantanamo Bay. It seems that even a president as strong as Barack Obama is not able to sustain political pressures within his own party.

If Obama wants to close this facility down, what’s stopping him?
There are two elements: the security aspect and the financial aspect. There was a plan to try high-profile defendents in New York. But that amounted to a huge amount of tax money – around 400-500 million dollars, including building the security facility to detain Guantanamo Bay prisoners. So that encountered a lot of opposition.

Can trials be held outside New York?
Yes. The order does not fully exclude federal trials on the mainland. I think Obama in his approval of the 7th of March still leaves the gate open, both for closure of Guantanamo Bay and potentially for federal trials. Although I think the reality is very clear - there will be no federal trials in the near future. The federal trial before the District court in New York on the bodyguards of Osama Bin Laden was a disaster for the prosecution. The federal judge threw out the testimony of the main prosecution witness because he confessed to certain things under pressure. So the conviction was just for a small part of the whole indictment. So the federal trials, where the standard of proof is much higher than before military commissions, create huge legal risk for the prosecution. Therefore, the military trials in Guantanamo Bay have a greater chance of leading to a successful prosecution than before a federal court.

But these military trials are not transparent, are they?
No. Although to be fair, Obama did include in his order a better system of handling classified information and a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment.
But nobody knows exactly how the military commissions will deal with these new instructions. The military commission has discretion to make decisions on admissibility of certain evidence. And under restrictions it’s still possible to make use of classified information which is not possible at all before a jury on the US mainland.

What do you think this means for the reputation of the US as an upholder of the rule of law?
You see already that the first responses, like the chairman of the armed services commission McKeon said that Obama is repeating the same mistakes of George Bush. He is creating a policy by executive rather than legislation. I think this impression is being reinforced by this decision. Remarkably, this decision is also being presented by Hillary Clinton as a decision which does embrace the rule of law, because she says, “well, we treat our enemies with all the international guarantees and humane treatment”. But the question is whether that will be interpreted as such. I think for the Arabic world it will reinforce the picture that the US is apparently treating certain suspects without fair trial guarantees.

What is your advice to Obama?
From an international legal viewpoint I don’t see any other option than to set up such a federal court system in the US or make use of the existing federal court systems to try the cases where the prosecution says there is sufficient evidence. What Obama needs now is not more advice, but political support which he simply has not received up to now.

Download the print version of the International Justice Tribune 124 (PDF file)

Subscribe to the International Justice Tribune

Earlier IJT editions:

• International Justice Tribune, 123 (2 March 2011)
• International Justice Tribune, 122 (16 February 2011)
• International Justice Tribune, 121 (2 February 2011)
• International Justice Tribune, 120 (19 January 2011)
• International Justice Tribune, 119 (14 December 2010)
• International Justice Tribune, 118 (1 December 2010)
• International Justice Tribune, 117 (17 November 2010)
• International Justice Tribune, 116 (2 November 2010)
• International Justice Tribune, 115 (20 October 2010)
• International Justice Tribune, 114 (4 October 2010)
• International Justice Tribune, 113 (21 September)
• International Justice Tribune, 112 (8 September 2010)
• International Justice Tribune, 111 (25 August 2010)
• International Justice Tribune, 110 (14 July 2010)
• International Justice Tribune, 109 (30 June 2010)
• International Justice Tribune, 108 (16 June 2010)
• International Justice Tribune, 107 (2 June 2010)
• International Justice Tribune, 106 (19 May 2010)
• International Justice Tribune, 105 (5 May 2010)
• International Justice Tribune, 104 (21 April 2010)
• International Justice Tribune, 103 (7 April 2010)
• International Justice Tribune, 102 (24 March 2010)
• International Justice Tribune, 101 (10 March 2010)
• International Justice Tribune, 100 (24 February 2010)
• International Justice Tribune, 99 (10 February 2010)
• International Justice Tribune, 98 (27 January 2010)
• International Justice Tribune, 97 (13 January 2010)
• International Justice Tribune, 96 (23 December 2009)
• International Justice Tribune, 95 (9 December 2009)
• International Justice Tribune, 94 (25 November 2009)
• International Justice Tribune, 93 (11 November 2009)
• International Justice Tribune, 92 (28 October 2009)
• International Justice Tribune, 91 (14 October 2009)
• International Justice Tribune, 90 (30 September 2009)
• International Justice Tribune, 89 (16 September 2009)