Don't close Guantánamo

The prisoners could lose their access to habeas corpus, lawyers and human rights groups if moved overseas

When President Barack Obama issued an executive order in January to close the Guantánamo detention facility, Amnesty International hailed the move as "a major step forward" for human rights. But in hindsight, Obama's announcement may have been one step forward, two steps back. Perversely, it could reverse the progress that civil rights attorneys have made in their efforts to secure legal protections for detainees.

For several years, rights activists have recognised that closing Guantánamo is only half the battle. The next question is: where will the 241 remaining detainees go? One option is to send them home. However, more than 40% of the detainees are Yemeni, and negotiations between the US and Yemen to repatriate those prisoners have reached a "complete impasse". Yemen is combating an extremist insurgency already, and it is not keen to accept dozens more men who have been described as "jihadist foot soldiers". Moreover, approximately 60 detainees from various nations have said that they fear torture or abuse if sent home. In short, repatriation is no panacea.

A second option is to resettle detainees in the US. But the department of homeland security has already raised resistance to a plan that would release just seven of the inmates inside the country.

A third option would be to transfer the detainees to European allies, who initially offered to assist in the Guantánamo shutdown. But these plans appear to have stalled as well. If detainees pose no security risk, why would the US refuse to resettle them itself? And if the detainees do pose a risk, why should that risk be transferred to European allies?

A fourth option is to transfer detainees to prisons or military bases inside the US and grant them access to federal courts. However, states with "supermax" prisons and significant military installations have already launched "not-in-my-backyard" campaigns to keep the detainees out. Moreover, as former justice department attorneys David Rivkin and Lee Casey point out, holding detainees in penal institutions may constitute an "outrage upon personal dignity" in violation of the Geneva convention common article 3. And putting them on trial may be impossible because the detention and evidence collection processes so far have not measured up to civilian court standards.

This leaves a final option: transfer detainees to other US military bases overseas. The US supreme court ruled last year in Boumediene v Bush that Guantánamo detainees have habeas corpus rights because the US maintains "de facto sovereignty" over the base. But the court only reached this conclusion after analysing Guantánamo's unique history dating back to the 1898 Spanish-American war. The five-justice majority said its ruling was consistent with a 1950 decision that had denied habeas rights to 21 German nationals who surrendered in China and were transferred to a US army base in West Germany. The Boumediene ruling does not necessarily apply to all overseas installations.

Human rights activists were heartened this month when district court judge John Bates ruled that four prisoners who were captured outside Afghanistan and transferred to Bagram Airfield north of Kabul could petition for habeas corpus. Yet the Obama administration has appealed, and Bates's ruling could be reversed. Moreover, Bates explicitly states that his ruling does not apply to detainees who are imprisoned in the same country where they were apprehended. By one count, nearly 90% of Guantánamo detainees were captured in Afghanistan or Pakistan. Thus, detainees who have habeas access at Guantánamo may lose it if they are transferred back to US bases in central Asia.

On the Senate floor this week, Republican leader Mitch McConnell spoke out against Obama's plans to close Guantánamo, maintaining that conditions at the base are "better than the [prisons] in Belgium". He and his House allies hope to strip the president's budget of an $80m measure that would cover closure costs.

Contra McConnell, who has no apparent interest in protecting the detainees, Guantánamo is no Belgium. A recent report by the Centre for Constitutional Rights – whose attorneys have visited the base 40 times since 2004 – details the ongoing outrages inflicted upon inmates there. But attorneys are visiting, and the world is watching Guantánamo to see whether detainees are treated humanely. As bad as conditions may be, they could be far worse if inmates were dispersed to far-flung military bases beyond reach of lawyers and rights monitors.

The closure of Guantánamo is a symbolic victory for rights activists. But it may prove to be a substantive defeat for the detainees themselves. It is unlikely that Amnesty International will replace its "Tear down Guantánamo" campaign with calls to "Keep Gitmo open". But, counter-intuitively, the conservatives in Congress who want to save Guantánamo from closure may end up safeguarding the legal rights of its inmates.