Deborah Orr: Obama is right to tread warily over Guantanamo Bay

The rhetoric of human rights is soothing. The facts, however, are less comforting

A poll conducted in the days before Barack Obama's inauguration was presented as an illustration of the success of the incoming administration's moves to "manage expectations". Even though the new president's popularity was running at more than 80 per cent, the poll found, people were willing to give Obama a "couple of years" before they expected easily discernible improvement. This, those analysing the poll suggested, was "realistic".

But time limits of any duration are surely unrealistic, except in the case of climate change. In the current perilous international situation, every move in the right direction is to be cherished, however cautious it may seem. Instead, already some people have expressed disappointment that in his first hours as President, Obama moved only as far as to request a 120-day halt to military trials at Guantanamo Bay, while an executive order to close the camp by year-end has been prepared but remains unsigned. Some are irked that Obama made no direct reference to Guantanamo in his inauguration speech, even though such phrases as "We reject as false the choice between our safety and our ideals" were clearly drafted with this, alongside many other abuses, in mind.

Obama's campaign pledge to close Guantanamo was one that he interceded himself to "manage expectations" about. While President-elect he admitted that shutting down the notorious detention facilities in Cuba was more difficult that might at first have appeared. He didn't suggest that this was no longer a goal just that it was a tricky manoeuvre to pull off, as it involved working out what to do with many "dangerous individuals".

He is, of course, right. In theory, solving the Guantanamo problem is as easy as pie. All one has to do is decide which of the remaining inmates should be freed, and which should be charged for trial in a US federal court. Yet dealing even with the former group is fraught with difficulty.

Apart from anything else, the human-rights records of a number of the countries involved are such that detainees cannot in good conscience be returned to them. Many detainees themselves fear repatriation, and since the US detained them in the first place, it falls to the US, to set up an open process whereby their claims to asylum can be assessed.

Some of these detainees are relatively easy to deal with. Up to 17 Chinese Uighurs, it is accepted, have good reason to fear return to China. It has already been decided that they will not face charges, and Uighur communities in the States have said they are willing to accommodate them. Yet still they languish in Cuba.

It is easy to see why the Bush administration was reluctant to offer asylum to the Uighurs. But it is not much harder to understand that even now an immediate push to resettle them all in the US would alarm many Americans, and quickly reignite fears that Obama is too idealistic a liberal for many powerful tastes. This would be of practical benefit tono-one.

With an eye to fresh starts, and international co-operation, it would be far more acceptable for detainees in this category to be dispersed to many countries – those, preferably, where the individuals concerned have relatives, or where migrant communities are willing and able to offer benign support.

Some countries – Australia and Portugal among them – have already indicated that they would not be averse to accepting released detainees who can't return home. Fifty or 60 detainees have already been cleared for release. Perhaps it is time to reconvene the coalition of nations that came together to mount the military retaliation against Afghanistan, so that the work of resettling those left in Guantanamo as a consequence of that action can begin in earnest

The rehabilitation of these people, who no doubt have been traumatised by their seven years of captivity alone, ought to be shared. The US cannot be expected to atone for is errors alone. Yet, it is plain again that were Gordon Brown to announce unilaterally that Britain would be taking a number of Guantanamo detainees, his declaration might not provoke universal joy in these isles. An international coalition offering asylum to those detainees who have been cleared for release cannot be put together so very quickly. But this is something that Obama must do. It will take time.

And these are only the detainees who are not considered be be an ongoing threat. The rest should indeed be put on federal trial. In general, federal trial has proved far more efficient in dealing with terrorists than the military trials that have now been suspended. For some, this is evidence in itself that they are a better way of achieving justice.

But the trouble here is that Guantanamo cannot be wished away. Much of the evidence against even those whose charges can be independently collaborated has been obtained using torture, illegal rendition, secret prisons, secret courts and, of course, long-term arbitrary detention without trial. In a federal court, therefore, much of the evidence against these people is tainted far beyond use. In some cases, this will apply to all of it.

That possibility, precisely, is the reason why so many observers were so appalled when it became apparent in the early weeks of the Afghanistan war that the US intended to dispense rough justice as it came along. As time has gone on, those problems have only become greater. Hardly anyone has any useful suggestions in the way of practical steps that can be taken in the wake of collapsed trials or acquittals. Yet such eventualities are surely unavoidable.

The rhetoric of human rights is soothing, for it declares that all men are innocent until proven guilty. The facts are less comforting. Abdallah Salih al-Ajmi, released into Kuwaiti custody from Guantanamo, was acquitted after trial in Kuwait. It is now fairly certain that he was responsible for a suicide attack last year in Mosul, which killed seven Iraqis.

It is hard enough to envisage an international coalition dispersing those detainees who are not facing charges. But it is even more difficult to persuade oneself that this coalition would further agree to accept some of those who have faced charges, and been released on the "technicality" of torture and abuse sustained over seven years.

Canada, shamefully, has barely objected to the incarceration of the young Canadian, Omar Khadr, even though he was only 15 when he committed his alleged crime. His military trial has been stopped by Obama's intercession, and it is devoutly to be hoped that Canada will now negotiate his return. Unfortunately it isn't hard to work out why it has not done so thus far.

The unpalatable truth about Guantanamo is that international revulsion against it has never been converted into practical consensus about how it should be dismantled. Often, the Bush administration itself rebuffed offers that would have helped with this process. Sometimes, though, there has been barely disguised relief that there was an unpleasant but easy option, whereby problematic individuals could be left in the hands of the US. The unpalatable truth is that they can't.

d.orr@independent.co.uk