During his first television interview after winning the White House, president-elect Barack Obama reiterated his long-standing promise to shut Guantánamo Bay. Since the historic vote, legal and policy circles, journalists and human rights activists have hummed about when and how the notorious prison's doors will slam shut once and for all, and what will happen to some 250 detainees still held there. While the incoming president and his team are right to put Guantánamo at the top of their priority list, when it comes to restoring American leadership on human rights, closing the prison is only a first step.
Guantánamo has become an emblem of the erosion of US legitimacy on human rights issues over the last eight years. Because it is under direct US control, is near US shores and has been the site of abusive interrogations and years of indefinite detention without charge, the prison has been a focal point for public outrage both at home and abroad.
While the incoming administration's commitment is unquestionable, closing Guantánamo may not be as simple as it looks. While human rights and legal groups have argued convincingly that US federal courts are well equipped to try the remaining detainees who have been implicated in criminal offences, some experts continue to argue for a new brand of preventative detention that could continue to deprive Guantánamo prisoners of basic due process rights, effectively moving the prison to the continental US.
Realistically it could be months – many months – before the legal disposition of every last detainee is resolved, and the facility shuttered. In the meantime, it is essential that the new administration look well beyond Guantánamo and begin to confront an array of other issues that are essential to restoring a leadership role for the US on human rights. The most basic involve ensuring that the abuses with which Guantánamo has become synonymous do not outlast the prison itself. There have been wide calls for an executive order that would apply rules on interrogations set forth in the US army's field manual to all US personnel, including the CIA. The new president should also end renditions – forced transfers – of detainees to countries where they face risk of torture, and close permanently the shadowy network of secret prisons where detainees are effectively "disappeared".
Bagram air base in Afghanistan holds some 600 detainees. While many were captured on battlefields in Afghanistan, others were picked up from their homes, far from the main areas of the insurgency, and at least a handful were apparently brought there from elsewhere to be held indefinitely without charge. The prisoners lack access to legal counsel, and because the facility is on Afghan territory, the US justice department has argued that US habeas rights do not apply. Devising a fair process to adjudicate the status of these detainees will be essential to ensuring that Bagram is not the next Guantánamo.
While abuses carried out as part of the fight against terrorism cost the US its position of leadership on human rights issues globally, regaining that status will require more than just bringing counter-terrorism tactics in line with international norms. While the Bush administration hailed democracy and freedom as centrepieces of its foreign policy, in practice it tended to sideline human rights considerations within its important bilateral relationships.
To cite just a few examples, disregard for human rights has contributed to a culture of lawlessness in Pakistan's tribal areas. Despite $10-12bn in mostly military US aid to Pakistan since 2001, civilians affected by the current conflict are left defenceless in squalid, disease-infested camps – some of which the UN refugee agency cannot reach – where their frustration with the US-led war effort only grows. As part of its effort to stabilise this strategically vital region, the US must invest in building institutions that support the rule of law and ensuring that approaches to security uphold human rights. In neighbouring Afghanistan, the US needs to take immediate steps to reduce civilian casualties in military operations, and to press for an end to corruption, which is both fuelling the conflict and undermining popular faith in democratic governance.
In contemplating political agreements to end the conflict the US must avoid strengthening the hands of the region's most brutal warlords. While human rights will not be the sole consideration governing multi-faceted relationships with foreign governments, the new administration needs to affirm their place on the agenda and work with like-minded voices to press for progress.
The US also has work to do in terms of strengthening the international human rights infrastructure. The Bush administration distanced itself from the international human rights community by failing to ratify key treaties and absenting itself from new institutions of human rights enforcement. The next administration must demonstrate in tangible ways that the US is prepared to cooperate with others in building and strengthening mechanisms to protect and advance human rights in the 21st century. Its absence from key forums and debates has created space for spoilers who seek to vitiate existing human rights norms and prevent new ones from taking hold.
In 2005 the UN adopted a new norm, the "responsibility to protect", affirming the duty of states to protect their own populations, and the obligation of the international community to step in when they won't do so. But the new norm has flunked its first test in Darfur, where the government has suborned rampant human rights abuses and the international community has failed to intervene effectively. Working with allies to build broad-based support for rigorous human rights enforcement is a long-term project that needs to start right away. Necessary steps also include re-engaging with the international criminal court, a body that has begun to prove itself as a vital instrument of international accountability for war crimes.
Building US credibility on human rights will be a long-term project requiring a steady hand against the buffeting forces of foreign policy reality. Done right, the wider human rights agenda could make closing Guantánamo look like the easy part.