Candidate Barack Obama pledged in 2008 to close the Guantanamo Bay detention camp. But as President Obama runs for re-election four years later, it remains open.
Vanderbilt law professor and former State Department adviser Vijay Padmanabhan says Obama learned the same thing that many others who’ve taken a closer look at the issue discern sooner or later: There is no quick and easy answer when contemplating what to do about detainees.
“These issues may seem black and white on the surface, but they are complex questions and the stakes are very high,” said Padmanabhan, assistant professor of law at Vanderbilt Law School. He specializes in international law, national security law, international human rights law and international criminal law.
As an attorney-adviser for political and military affairs from 2006 to 2008, Padmanabhan advised U.S. Department of State officials on individual detainee cases and helped negotiate deals with foreign nations to safely transfer detainees. He served as the State Department’s chief counsel on Guantanamo and Iraq detainee litigation and advised the department on law of war, human rights and public diplomacy questions during this time.
He had served in the Office of the Legal Adviser since 2003, previously working on international claims issues. Padmanabhan has taught at Vanderbilt since fall 2011, after teaching at the Benjamin N. Cardozo School of Law for three years.
“You hear from human rights organizations that think we should either prosecute detainees or let them go,” he said. “Well, let them go to where? There continues to be large numbers of individuals the government doesn’t want to detain but who cannot be returned to their home country because there is substantial risk of them being mistreated.”
Third-party countries willing to take in these detainees – some who have been suspected of aiding terrorists – are difficult to find, Padmanabhan said. The largest contingent of detainees at Guantanamo Bay is from Yemen, and if returned to that unstable country it would be difficult to keep track of them and ensure they didn’t again become a risk to the United States.
“On the other side of the coin, you have a lot of people who want to keep Guantanamo Bay open forever, to just detain people indefinitely,” Padmanabhan said. “And no president or defense department wants to detain somebody they don’t need to detain.
“It costs money and it costs good will at the place where you’re located. … There’s also the argument that the existence of a place like Guantanamo Bay is a major recruiting tool for organizations like al-Qaida.”
The Guantanamo problem is a small part of a larger need to update international law to account for conflicts with non-state groups, Padmanabhan explained. The Geneva Conventions, ratified after World War II to primarily regulate conflicts between states, has important gaps when applied to conflicts with groups such as al-Qaida.
“The Geneva Conventions don’t answer the question of what procedural protections need to be provided to individuals to determine whether they’re being held properly as a combatant or not,” he said. “There’s always the question of whether someone is really a member of al-Qaida. Members of al-Qaida don’t wear distinctive clothing, they don’t carry arms openly, and they’re not picked up on an open battlefield.”
This new situation calls for new rules to determine if someone can be detained and a new mechanism to transfer those who are released to a safe place, Padmanabhan said.
“These guidelines should be clear that all captured persons in conflicts with non-state groups are entitled to notice of the reasons for their detention, an opportunity to contest those reasons in front of a neutral fact finder and the right to appeal decisions to a higher authority,” he said. “These simple rules would have avoided years of unnecessary detention in the post-9/11 conflicts where these procedures were not provided.”
Padmanabhan also advocates for the creation of an international agency – similar to the Office of the U.N. High Commissioner for Refugees – that would have responsibility for assisting states in resettling detainees who do not qualify for refugee status and where repatriation is not an option.
“If you’re someone at Guantanamo Bay who the government does not believe poses a threat and should no longer be detained, but may have engaged in a nonpolitical crime as a historical matter, this would be a way to have the U.N. apparatus aid in resettlement,” he said.
Padmanabhan is enjoying the switch to academic work.
“The work I do now – it’s more of an advisory role,” he said. “There are lots of big-picture questions that need academic treatment to ensure future conflicts are not fought in such a legal haze.”
This differs from life in government, he said, where, “you really had to make sure you made the right judgment, because people’s lives were at risk.”
Contact: Jim Patterson, (615) 322-NEWS or firstname.lastname@example.org