Nearly eleven years after the Bush administration’s “war on terror” prison opened on the U.S. naval base at Guantánamo Bay, Cuba, its much-mooted closure seems as remote as ever.
Last week, there were encouraging noises, when Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Intelligence Committee, presented a report prepared by the Government Accountability Office (GAO) looking at the feasibility of housing prisoners in the United States. The report found that there were 104 suitable facilities, 98 run by the Department of Justice, and 6 by the military. Releasing the report, Feinstein said, “This report demonstrates that if the political will exists, we could finally close Guantánamo without imperiling our national security.”
On the military side, there are three Naval brigs — at Charleston, S.C., Chesapeake, Va., and Miramar, Calif. — as well as the correction facilities at Fort Leavenworth, Kans., and Lewis-McChord in Washington, and the Disciplinary Barracks at Leavenworth. In total, those facilities are almost half-empty.
The other route would be for prisoners to be held in federal prisons. The GAO found 98 suitable prisons, which, between them, hold 373 people convicted of charges related to terrorism.
As Spencer Ackerman explained in Wired, the GAO report is “rigorously agnostic on whether Guantánamo ought to be closed.” The researchers also pointed out that there were significant obstacles if the prisoners were to be moved, not the least of which is that Congress would have to repeal legislation preventing the Justice Department from taking custody of Guantánamo prisoners.
Nor is the military option any easier. Since 2009, Congress has repeatedly passed legislation preventing the president from bringing prisoners from Guantanamo to the U.S. mainland. Moreover, just days after Feinstein published the GAO report, the Senate voted, by 54 votes to 41, and with bipartisan support, to ban the administration — by means of an amendment introduced by Sen. Kelly Ayotte (R-N.H.) as part of this year’s National Defense Authorization Act — from moving prisoners from Guantánamo to the U.S. mainland for another year.
The NDAA also reiterates a ban on allowing funds to be used for the transfer of prisoners to other countries, and on funds to construct, acquire, or modify any detention facility on the U.S. mainland to house any prisoners at Guantánamo. That ban prompted a strong rebuke from the White House Office of Management and Budget, which released a statement in which Congress’s efforts to keep Guantánamo open were described as “misguided when they were enacted and should not be renewed.”
The statement also explained, “If the bill is presented to the President for approval in its current form, the President’s senior advisers would recommend that the President veto the bill.”
Furthermore, the statement noted, “Since these restrictions have been on the books, they have limited the Executive’s ability to manage military operations in an ongoing armed conflict, harmed the country’s diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security.” It added, “The Administration continues to believe that restricting the transfer of detainees to the custody of foreign countries in the context of an ongoing armed conflict interferes with the Executive’s ability to make important foreign policy and national security determinations, and would in certain circumstances violate constitutional separation of powers principles.”
It was also noted that the ban on constructing, acquiring, or modifying a detention facility on the U.S. mainland for any prisoner in Guantánamo “shortsightedly constrains the options available to military and counterterrorism professionals to address evolving threats.”
Despite the strongly worded statement, the whole struggle between Congress and the Executive is playing out as it did last year, when Barack Obama’s threatened veto did not emerge. Instead he issued a signing statement explaining his objections, but going no further.
Where this leaves the Guantánamo prisoners is unclear. On November 27, Human Rights Watch and 27 other organizations sent a letter to Obama, “urging him to veto the National Defense Authorization Act for FY 2013 if it impedes his ability to transfer detainees out of Guantánamo Bay,” and pointing out that, “if the NDAA is signed with any transfer restrictions in it, the prospects for Guantánamo being closed during your presidency will be severely diminished, if not gone altogether.”
That is not alarmist rhetoric, given that only five prisoners have been released from Guantánamo in the last two years — a number almost matched by the three who have left in coffins. Of the five, the habeas corpus petitions of three were granted by a U.S. court (back in the days before the D.C. Circuit Court made habeas corpus meaningless for the Guantánamo prisoners), and two others were released as a result of plea deals.
Although neither was actually a significant prisoner — one, Omar Khadr, was a child at the time of his capture, and the other, Ibrahim al-Qosi, was a cook for people in a compound associated with al-Qaeda — they were among the handful of prisoners put forward for a trial by military commission. Their release, therefore, contrasts even more sharply with the fate of more than half of the 166 men still held — the 86 men who were approved for transfer from Guantánamo by Obama’s interagency Guantánamo Review Task Force in 2009.
The fact that they are still held when those who cut plea deals and confessed to being war criminals have been released only confirms that, at Guantánamo, every notion of what constitutes justice has been twisted out of any recognizable shape.
Between them, the administration and Congress need to work out how to free the men whose release was recommended by the Task Force, and to try those recommended for trials (around 30 of those who remain). They should also think long and hard about how long the remaining 46 men can continue to be held.
The Task Force recommended that group of men for indefinite detention without charge or trial because they are alleged to be dangerous, even though no information that purports to prove that can be presented before a court. That means that the supposed evidence is profoundly unreliable, although the administration accepted the recommendations, and in March 2011 Obama issued an executive order authorizing the detention of the men and providing them with periodic reviews of their status, about which we have subsequently heard nothing.
If prisoners are to continue to be held on that basis, the administration and Congress should think about whether the designation can really be justified to hold them for the rest of their lives.
Most of all, though, those in positions of power and influence need to release the 86 men who a Task Force of qualified persons decided should no longer be held, because, as disgraceful as it is to be finding false justifications for holding men forever because of the alleged but apparently unprovable threat they pose, it is even worse to hold men forever whom you have publicly stated you no longer wish to hold. Fifty-five of those men were named, for the first time, on a list made available by the Department of Justice just three months ago, and their release should be a priority for everyone in a position to facilitate it.