Albania: Getting out of Gitmo

Vijay Padmanabhan

Vijay Padmanabhan
Vijay Padmanabhan is a former State Department lawyer who worked on negotiations for the repatriation of U.S. detainees to their own home countries or resettlement in third-party countries. He is currently a visiting assistant professor at the Benjamin Cardozo School of Law at Yeshiva University in New York City.

In this interview with reporter Alex Poolos, Vijay Padmanabhan talks about the U.S. strategy for negotiating detainee transport from Guantanamo Bay, the case of the Chinese Uighurs and the complicated question of whether Guantanamo detainees will ever be brought to U.S. soil. The interview has been edited for clarity.

Alex Poolos: How do countries respond when you ask them to take in detainees from Guantanamo?

Vijay Padmanabhan: Most of these are democratic countries that have populations who would be very concerned about the idea of accepting Guantanamo nationals for resettlement. For example, the United Kingdom accepted four of its previous residents, non-British nationals, for resettlement late last year. When the British government announced that they were interested in doing this, the political opposition immediately stepped up and said, “These are dangerous people. Why would the government be accepting these people back onto the streets of the U.K.?”

A second strand of concern would be about the security situation. You would have people say, whatever the politics of the situation, there are legitimate security concerns about letting these people loose in our countries. We lack the resources, the security capability to keep track of these people, so we can’t allow them to simply be loose on the streets.

There is also a little bit of incredulity on their part that the United States is asking them to be involved in solving what they view as a U.S. problem. They say, “Well, if the United States hasn’t accepted any of these detainees for resettlement, why should we?”

Why not just send the Uighurs back to China?

A determination was made very early on that the Chinese government could not be trusted not to mistreat these individuals if they were returned to China. The U.S. government has a policy that it doesn’t send people back if it’s more likely than not that they’re going to be tortured, and the consensus within the U.S. government was that the Chinese government would fall short of that requirement.

Was China eager to have them back?

The Chinese government has publicly stated that they think these individuals are terrorists and that they should be brought to justice in China for their actions. I think the difficulty is that the Chinese human rights record is known to be very poor. It’s particularly poor with respect to Uighur separatists in the Xinjiang region, and so the United States simply is not going to send people back to China.

If the Uighurs are not a threat, why not just admit them to the United States?

This is a very difficult question that the Bush administration has wrestled with for the last five years. There are a couple of concerns. One is a political concern. The Senate passed a resolution in 2006 in which 96 U.S. senators went on record saying that they do not want Guantanamo detainees brought into their communities. So there’s a lot of the “not in my backyard,” or NIMBY, syndrome.

The second concern is that there’s a litigation issue. If former detainees are let into the United States, they could spawn a great deal of litigation with respect to what has happened at the Guantanamo Bay facility, and I think there was a sense that there might be some legal exposure for the United States. 

And lastly, it’s a precedent question. If the government starts letting Guantanamo detainees into the United States, will a court view that as an invitation to let in people that the government doesn’t think should be let in? So I think there was a sense that we should maintain a strict policy of not letting anybody in, so as not to give the courts the idea that some Guantanamo detainees can be resettled in the United States.

The Justice Department says that the Uighurs were living in a terrorist training camp. Is there actual evidence of this, and how did you answer this question? It must have come up in your negotiations with other countries.

I think the Uighur detainees’ attorneys admit that their clients were training at the camps. I don’t think there’s any question that they had come to Afghanistan for the purpose of obtaining weapons training to fight the Communist Chinese in Xinjiang. There’s no other reason for these individuals to be in Afghanistan, so I don’t think there’s a dispute about that fact. What you tell foreign governments is that they were intending to use this training somewhere down the line against the Chinese government. So one of the risks any country takes in accepting these people for resettlement is that they might use their training to conduct some sort of local operation against the Chinese embassy, for example. It would be a diplomatic nightmare if you let people in, aggravating the Chinese, and then the people you let in turned around and conducted some sort of operation against a Chinese embassy.

Which countries did you approach?

There was a point in 2005 or 2006 when the U.S. government had all of our embassies in every country that was a reasonable possibility go forward and ask them if they would consider accepting Guantanamo detainees for resettlement. African countries, Asian countries, South American countries. Every country in the European Union. And the answer was almost universally no. So without saying, this country is in, this country is out, the reality is that just about every country has been approached on this question.

What happened when you approached Albania? 

The Albanian government made the decision to do the humanitarian thing and accept these people for resettlement. One of the things the State Department has always looked at is some ability for the detainee population to successfully be resettled there. And the hope was that because Albania is a Muslim country, these Uighur Muslims would have some avenue to assimilate into the community.

Was there a political motivation for Albania to take Uighurs?

I can’t speculate about why the Albanian government decided to do it, but, as a general matter, Albania and the United States have a very positive relationship. It’s one that’s grown closer over the Kosovo issue. The United States has been one of the leading countries in supporting independence for Kosovo. And I think the Albanian government made a decision, for humanitarian reasons and political reasons, that it was in its interests to help the United States on this issue.

Was there any kind of trade-off, or political quid pro quo?

I think Albania, like any country, would recognize that if you do a country like the United State a favor by taking these people off their hands, it fosters goodwill, and it’s a plus in a bilateral relationship.

In hindsight, do you think Albania was the right place for the Uighurs, or was it simply the only place?

The options that they faced were either continued detention in Guantanamo or go to Albania, so I think it was the right decision. One of those detainees who we sent to Albania, in fact, went to Sweden subsequently and sought to be admitted as a refugee. And I understand the Swedish government turned down his request to remain there, so it’s not as though countries across the board have been clamoring to allow these people into their countries. The United States is very cognizant of the difficulty that these individuals face and has provided aid to the Albanian government to be used specifically for job training and language training and assistance for these detainees.

What do you think should be done with the rest of the Uighurs?

If the State Department cannot find a third country to accept them for resettlement, then I think they really should be resettled in the United States. Both the Democratic chairman and the ranking Republican of the House Foreign Affairs Committee have come out publicly in support of resettling the Uighur detainees in the United States.

Congressman Rohrabacher, the ranking Republican on the committee, has said it’s a national shame that these people continue to be wrongly detained. So the fact that there’s some support on the Hill for letting these particular detainees into the United States is something I think the Obama administration should exploit.

What about Robert Gates coming out and saying nobody from Guantanamo is going to get asylum in the United States? How would you respond to him?

I think taking a hard-line position that no detainees can be resettled in the United States is probably diplomatically counterproductive to ever getting these detainees moved out.  The Portuguese have announced that they’re interested in working as part of an E.U. initiative for resettling detainees in the European Union, but that initiative is predicated on the notion that it’s going to result in closure of Guantanamo Bay. And that’s not going to happen unless the United States steps up and has a plan that includes allowing some small number of Guantanamo detainees to be resettled in the United States. So I think the defense secretary is raising issues that you would expect a defense secretary to raise, but you then have to have the new secretary of state come in and represent the diplomatic aspects of this challenge.

How were your efforts to convince other countries to accept the Uighur detainees affected by the fact that certain departments of the Bush administration continued to call them enemy combatants?

There was a real problem. On the one hand, you had aspects of the U.S. government who were repeating the old Secretary Rumsfeld line: these are the worst of the worst. Then, on the other hand, you’re sending the State Department out to plead with countries to accept Guantanamo detainees for resettlement. There is a degree of dissonance in that message. You want to balance an honest assessment of what the threat is, which is what the State Department tries to do, but at the same time you don’t want to have reactionary or exaggerated statements about threats coming from other parts of Washington.

Obama has said unequivocally, “I’m going to close Guantanamo.” What problems does he face?

He faces a bunch of problems. I think his people are already recognizing that it’s harder than they thought it was going to be to close Guantanamo. The next administration does have the benefit of more goodwill. Quite frankly, many countries in Europe and the rest of the world were not interested in doing favors for the Bush administration because of what they perceived as unilateralism with respect to Iraq and with respect to War on Terror issues more generally. And so the next administration may have an opportunity to go to allies and say, “Let’s really work on getting these folks resettled -- some in the United States but a lot of them in other countries around the world.”

The second problem is that you have countries that are not able to take the security measures that are required. Yemenis currently make up more than 40 percent, I believe, of the detainee population at Guantanamo Bay. The new president’s going to have to ask himself, “Can we accept a greater degree of risk than the Bush administration has been willing to accept with respect to these Yemeni detainees?” Unless he is willing to accept a greater degree of risk, you’re not going to be able to close Guantanamo Bay. Because as long as there’s 100 Yemenis sitting at Guantanamo, it’s not practical to think you’re going to bring them all into the United States, and no other country’s going to take Yemenis in large numbers. So you’d have to find a way to feel secure enough with sending these people back to Yemen. 

And then, lastly, you have to figure out what do you do with the residual population -- the people that we can’t find a way to send home and that we can’t prosecute. You’re going to try to prosecute as many people as you can. Secretary Gates has already come out and said they may need some legislation, and one of the things I’m sure the Obama people will be thinking about is whether we should move toward some sort of administrative detention scheme, whereby courts can hold people with some legal process but with something different from a criminal trial.

Isn’t Guantanamo really just the tip of the iceberg on the detainee issue? We’ve got the same problems existing in other U.S.-run prisons in Iraq and Afghanistan.

It really is. The one difference is that if the United States decides it wants to release a detainee in Iraq or Afghanistan, it can just open the gates of the prison and send them into the population. Most of the people that are being detained in Afghanistan are Afghans. Most of the people being detained in Iraq are Iraqis. So it’s a little bit easier, from a diplomatic perspective, to deal with that situation. But the bigger question is What is the legal basis on which the United States continues to hold people for years on end? Does it require the consent of the home government? And are there better options and solutions than having the United States be the world’s jailer? Nobody in this government wants to have that role. So how do we improve the detention capacity of the Afghans, the detention capacity of the Iraqis, so that they can take the lion’s share of the responsibility for conducting detentions?

How has your thinking about what can be done about Guantanamo changed?

Initially my view was that Guantanamo should be closed and everybody should be released. Working in government gave me a good insight into what the real problems are: that there actually are some really dangerous people being held at Guantanamo Bay, and that, even when there are people you want to move, it’s very difficult to move them diplomatically, especially when they can’t be returned to their home countries because of human rights concerns. Working on that policy, day in and day out, really opens your eyes to how difficult it is to close Guantanamo, as much as you may want that to be your goal.

Once you leave government, it really does give you a good opportunity to step back and take a look at how the policy sits as a whole, and you do see that the U.S. government has unfortunately not done a very good job of explaining to the world why these people are being held, what they think each individual person has done. And I think it’s only lately that the Defense Department even knows exactly what the reasons are for detaining these people, and that’s a real shame.

What does their story tell us in terms of the bigger story of Guantanamo and the even larger story of our detention policy?

I would be careful to draw too many conclusions from looking at any one sample of detainees. I think the Uighurs’ case reveals that -- in the fog of war, in the fog of what was going on in Afghanistan and in Tora Bora after 2001 -- the Defense Department made some bad decisions that can be, maybe, easily explained. I mean, if you’re a battlefield commander, you may not be able to tell apart Mr. Uighur who went to the training camp to fight China and Mr. Non-Uighur who went to the training camp to fight the United States. It’s impossible in that situation to know the answers. The difficulty is that we then brought those people to Guantanamo Bay, and there was no real plan or thinking at the time about what to do with people that shouldn’t be detained. What do we do with people who we can’t send back to their home country because of treatment concerns? I think the tragedy is that the Bush administration didn’t think through all of these issues in advance, and people like the Uighurs have suffered as a consequence.

Do you think this is the intractable issue of our time? That we’ll look back in 10 years and say our detention policy in the War on Terror was one of the biggest issues of our time?

I think people will look back and say no one was prepared to handle the consequences of 9/11 and the wars that we’ve engaged in, in response to the terror attacks. All countries in the world are now wrestling with this issue; it’s not just the United States. I’m hopeful that the next legal adviser, the next State Department, will initiate or continue the dialog with our allies about common principles that all of us can live by in terms of what are the rules for when people can be detained, and what’s the process by which we decide who can be detained and what happens to people who can’t be returned home.

You said that you would be shocked if Guantanamo was closed by next Christmas, even though Obama has said it is one of his number-one objectives. Are you optimistic that we can resolve this issue, that it’s going to be any different?

Well, I think it’s like the economy, right? The economy’s not going to turn around on January 21st, and similarly the problem of Guantanamo Bay is not going be resolved in a week or a month or even six months. It’s going to take time and hard diplomatic work and hard security work and hard legal work before it’s going to be resolved.