A Guantanamo detainee looks through his hands from his cell at the Guantanamo Bay military detention facility. His fate and that of the 249 other detainees will soon be in the hands of President-elect Barack Obama. (Photo: Brennan Linsley / AP)
President Bush leaves the Obama administration with some difficult decisions, including what to do with present and future detainees.
President Bush leaves the Obama administration with some difficult decisions: looking back, how to address a legacy of abuse, illegality and global disrepute? Looking forward, what to do with present and future detainees? Obama needs to say five things on day one, to America and to his global audience.
First, he should state that he will not use the phrase "war on terror", words that tend to legitimise the struggle of those who seek to harm us.
Second, he should announce that the US will, as a matter of legal obligation, no longer use torture or cruel, inhuman and degrading treatment, as defined by international law.
Third, he should declare the closure of Guantanamo, with all detainees gone and the interrogation facility permanently shuttered by July 1 2009. Of the 250 or so detainees who currently remain, the great majority are not thought to pose any real threat to the US or anyone else. They should be returned to their home countries, with effective guarantees against ill-treatment.
Fourth, he must address what will happen to the 50 or so detainees who will remain in the US, some of whom are now subject to proceedings before military commissions under the Military Commissions Act 2006. He should announce the immediate suspension of all such proceedings and the repeal of that Act, a stain on America's reputation for justice and the honour of its military. Any detainee accused of committing crimes against the US should be tried before courts established in accordance with article III of the US constitution or, as provided for in the Uniform Code of Military Justice, by courts martial or military commission.
Fifth, he should announce that the US will honour and underscore its historic commitment to international efforts against impunity, so that past detainee abuses will not be forgotten. His administration should establish a comprehensive investigation of alleged post-9/11 detainee abuse, to be undertaken by an independent, expert commission, with a mandate to establish the facts as to how the administration embraced cruelty, and to make recommendations by the end of 2009.
With these five steps, Obama can go far in restoring the global reputation of the US and its ability to lead and to inspire.
Philippe Sands QC is professor of law at University College London, a barrister at Matrix Chambers and author of Lawless World (2005) and Torture Team (2008).