Playing Politics with the Closure of Guantánamo

By Andy Worthington, November 17, 2015

Supporters of the "Close Guantánamo" campaign have long been aware that the very existence of the "war on terror" prison at the U.S. naval base in Guantánamo Bay, Cuba is an affront to all notions that the United States respects justice and the rule of law, and we remember that as the closure of the prison becomes, yet again, an undignified game of political football, with Congress continuing to erect obstacles to the release of prisoners and the transfer of anyone to the U.S. mainland for any reason, and the Obama administration trying to come up with a workable plan for the prison's closure.

Although Congress, the week after the 9/11 attacks, passed a law -- the Authorization for Use of Military Force -- that purports to justify the detention of prisoners without charge or trial at Guantánamo, and the Supreme Court ruled in June 2004 that the government can hold them until the end of hostilities, this thin legal veneer has persistently failed to disguise the fact that everything about Guantánamo is wrong.

The Bush administration established the prison to be beyond the reach of the U.S. courts, and for nearly two and a half years the men -- and boys -- held there had no rights whatsoever. In a second decision delivered in June 2004, the Supreme Court ruled that they had habeas corpus rights, a decision that allowed lawyers into the prison, breaking the veil of secrecy that had shrouded the prison for all that time, enabling torture and other forms of abuse to take place. Even so, it was not until June 2006 that the Supreme Court, in another ruling, reminded the administration that no one can be held without rights, and that Common Article 3 of the Geneva Conventions, which prohibits torture and "humiliating and degrading treatment," applied to everyone in U.S. custody.

As well as refusing to recognize the necessity to treat prisoners humanely, the Bush administration also refused to recognize that people can only be deprived of their liberty by one of two means: either they are charged with a crime and put on trial, or they are prisoners of war, with the protections of the Geneva Conventions. Instead, the "illegal enemy combatants" of Guantánamo -- a notion invented by the administration's lawyers -- were put forward for trials in a deeply flawed trial system (the military commissions), or were consigned to indefinite imprisonment without charge or trial.

Under pressure from the courts, the administration set up various military review processes to approve prisoners for release, or bowed to diplomatic pressure from allies to free them, but this was all political, and nothing to do with the law. In 2008, when the Supreme Court ruled for the second time that the prisoners had habeas corpus rights (after Congress had unconstitutionally take them away in legislation in 2005 and 2006), several dozen men managed to have their cases reviewed by impartial judges, who, in most cases, ruled that the government had failed to provide sufficient evidence to justify their imprisonment and successfully ordered their release.

This was the high point for legal accountability, but after ideologically-driven judges in the appeals court in Washington D.C. changed the rules, insisting that everything the government said should be treated as reliable, they succeeded in shutting down the prisoners' habeas rights, and since then their fate has once more been a political game.

Guantánamo under President Obama

On taking office in 2009, President Obama established a high-level, inter-agency Guantánamo Review Task Force to review the cases of all the men he had inherited from his predecessor. In January 2010, the task force recommended that, of the 240 men held at the time, 156 should be released, 36 should be prosecuted, and 48 others should continue to be held, on the alarming and fundamentally unjustifiable basis that they were "too dangerous to release," but that insufficient evidence existed to put them on trial. This is unacceptable because, like so much of what passes for "evidence" in Guantánamo, the information relied upon by the government was produced through the torture or abuse of prisoners, or by bribing them to make false statements in exchange for better living conditions.

It is also worth noting that, in the task force's careful language, those recommended for release were actually "approved for transfer" out of Guantánamo, but the result is the same: a high-level government review process decided that the U.S. no longer wanted to continue holding them.

Although Congress has, since 2010, raised significant obstacles to the release of prisoners, and has banned the administration from bringing any of them to the U.S. mainland for any reason, 130 of those 240 men have been freed, and 107 are still held. Three others have died at Guantánamo.

Of the 107, 37 were approved for release by the task force, and 10 are facing or have faced trials. The others -- 60 men in total -- were either regarded as "too dangerous to release" or were recommended for prosecution, until the appeals court in Washington D.C. issued a number of devastating rulings establishing that the military commissions involved war crimes invented by Congress. As a result, the court overturned most of the handful of convictions obtained in the military commissions -- as well as making prosecutions impossible for most of those recommended for prosecution by the task force.

After the task force recommended 48 men for ongoing imprisonment without charge or trial because they were "too dangerous to release," despite a lack of evidence against them, President Obama issued an executive order specifically approving their ongoing imprisonment, although he also promised that they would receive periodic reviews to establish if the alleged threat they posed diminished with the passing of time.

This process, which only began in November 2013, has involved the prisoners, with the support of their lawyers and of military representatives assigned to them, putting together detailed proposals for why they can safely be released to resume peaceful, productive lives. The proposals are presented to a review board consisting of representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff.

71 men were deemed eligible for the Periodic Review Boards (reduced to 64 after five were released in a prisoner swap, one accepted a plea deal in military commission proceedings, and another was put forward for a military commission trial -- see here), but the results have been impressive. Of the 18 men whose cases have so far been decided, 15 have been recommended for release, a success rate, for the prisoners, of 83%.

It should noted, however, that just four of these men have so far been released, leaving eleven others to add to the 37 approved for release by the task force in January 2010.

The absolute obligation to release the 48 men approved for release

The fate of these 48 men ought to be fairly uncontentious. Approved for release by one of two high-level government review processes, the only question that should be asked is where they are to be released. The majority of the 48 -- 39 men in total -- are Yemenis, and the entire US establishment agrees that no Yemeni should be repatriated, because of the security situation in Yemen, so third countries must be found that will offer them new homes, as has happened, in the last year, with 23 Yemenis approved for release being resettled in other countries -- most recently, the United Arab Emirates.

However, lawmakers have added new restrictions to this year's National Defense Authorization Act (NDAA), which, in part, caused President Obama to veto the bill last month. Congress responded by dealing with all the president's other complaints but refusing to budge on Guantánamo. As Marty Lederman noted for Just Security, "Last Thursday, the House voted 370-58 to approve an amended version of the NDAA, with those restrictions still in place. This Tuesday, the Senate did likewise, by a vote of 91-3. And the White House has indicated that the President will sign the bill."

Lederman also noted, "Section 1034 of the House-passed NDAA will require the Secretary of Defense to make certain 'certifications' before transferring any of the detainees, including the (approximately) half who already have been cleared for transfer to nations overseas. As the President wrote in his veto statement, these pre-transfer requirements would be 'more onerous' than even the 'unwarranted' restrictions imposed by current law."

As he also explained, "The principal innovations in section 1034 (compared to current law) are that the Secretary must provide more information to Congress, and he must certify that the nation to which we are transferring a detainee 'has agreed to share with the United States any information that is related to the individual.'" He also wrote, "Because the President has decided to sign the NDAA, I’m assuming (or I hope, anyway) he has concluded that the new conditions will continue to permit him to transfer all, or virtually all, of the first half of the detainee population before the end of his Term."

We hope so too, as otherwise Congress is crossing an unacceptable line.

The urgent need to speed up reviews for the 49 remaining "forever prisoners"

When it comes to the men facing Periodic Review Boards -- dubbed "forever prisoners' by the media -- there are two particular concerns. The first is that the PRBs, with their 83% success rate, are moving far too slowly. It has taken two years to review the cases of 19 prisoners (one recommendation is still pending), but another 49 men are waiting, and at the current rate they will not all have received a review until the end of 2020.

Moreover, the decisions of the PRBs are not only relevant to the individuals concerned; they are also of enormous relevance to the proposed disposition of all the remaining prisoners.

To close Guantánamo, President Obama needs to release all those approved for release, and to move everyone else to the U.S. mainland. Just ten men are facing trials, or have faced a trial or have accepted a plea deal, and it is to be hoped that, if they are moved to the U.S. mainland, the discredited military commissions will be scrapped and they will face federal court trials.

This, however, appears to be a less contentious proposal than the question of what should happen to the "forever prisoners." Here at "Close Guantánamo," we have absolutely no desire to see anyone brought to the U.S. mainland to be held without charge or trial, but while some NGOs and lawyers are campaigning and lobbying to prevent this happening at all costs, we believe that, looking at the situation pragmatically, some men will have to be transferred for Guantánamo to close, because the government will not, in reality, abandon its belief that some of the men it still holds are "too dangerous to release," while continuing to acknowledge that insufficient evidence exists to put them on trial.

However, we hope this number will be as small as possible as a result of the PRBs that are still to come -- perhaps no more than a dozen or so in addition to the ten facing trials -- and, moreover, we believe that, on the U.S. mainland, these men will have rights they do not have at Guantánamo.

As "Close Guantánamo" co-founder Tom Wilner describes it:

If the detainees are brought to the United States, the government loses its prime argument for denying them constitutional rights. The imprisonment of anyone without charge or trial on the U.S. mainland is radically at odds with any concept of constitutional due process. Bringing them to the United States means that they would almost certainly have full constitutional rights and the ability to effectively challenge their detentions in court. They would then no longer be dependent solely on the largesse of the Obama administration, or whatever administration happens to follow it, but could gain relief through the courts.

For this to happen, however, Congress must either be persuaded to drop its ban on bringing prisoners to the U.S. mainland for any reason, or President Obama must take unilateral action.

We are currently hearing that a long-mooted plan for the closure of the prison will be delivered to Congress in the near future, identifying seven possible sites for holding prisoners -- "the U.S. Disciplinary Barracks and Midwest Joint Regional Corrections Facility at Leavenworth, Kansas; the Consolidated Naval Brig, Charleston, South Carolina; the Federal Correctional Complex, which includes the medium, maximum and supermax facilities in Florence, Colorado; and the Colorado State Penitentiary II in Canon City, Colorado, also known as the Centennial Correctional Facility," as the Associated Press described it.

We regard it as unthinkable that anyone would be held in federal prison unless they were being tried in federal court, and we hope that the administration regards a military facility as the only option for anyone not facing a trial. But at present, of course, we are some way from any of this becoming a reality.

Sen John McCain, the chair of the Senate Armed Services Committee, has long been critical of the administration's failure to submit a plan for the closure of Guantánamo to Congress. Two weeks ago, he said, "I've asked for six and a half years for this administration to come forward with a plan -- a plan that we could implement in order to close Guantánamo. They have never come forward with one and it would have to be approved by Congress."

And last week, as Politico explained, McCain said, “If it has all these different options, it’s not a plan. It’s passing the buck over to the Congress of the United States, knowing full well without a specific plan that it doesn’t have any chance." He added, however, that this was "maybe laying the groundwork for what the president did on immigration, which is the executive order."

This, or something like it, may be exactly what the administration is thinking, if Congress refuses to cooperate.

Greg Craig and Cliff Sloan's important op-ed in the Washington Post

In the Washington Post, on November 6, Greg Craig, who was White House Counsel in 2009, and Cliff Sloan, the envoy for Guantánamo closure in the State Department from 2013-14, explained how it might happen. In an op-ed entitled, "The president doesn’t need Congress’s permission to close Guantánamo," they wrote, "Some maintain that the congressional ban on transfers from Guantánamo to the United States prevents closure without congressional approval. But that is wrong. Under Article II of the Constitution, the president has exclusive authority to determine the facilities in which military detainees are held. Obama has the authority to move forward. He should use it."

As they proceeded to explain, "Congress has enacted legislation banning the use of funds to transfer Guantánamo detainees to the United States for any purpose, including incarceration and prosecution. But that irrational prohibition need not inhibit the closure of the facility. The restriction is plainly unconstitutional."

They added that, although the Constitution "assigns Congress the important power to 'declare war,'" Article II "designates the president as 'Commander in Chief' of the military," who "has the exclusive authority to make tactical military decisions."

"Congress," they explained, "can declare war but cannot direct the conduct of military campaigns. It can pass generally applicable military regulations but cannot direct the military’s response to contingent developments. It can authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war, but it cannot direct specific facilities in which specific detainees must be held and tried."

"Yet that," they proceeded to explain, "is precisely what Congress has attempted," with its "purported ban on funding any movement of detainees from Guantánamo Bay to the United States," which "restricts where 'law-of-war' detainees can be held and prevents the president from discharging his constitutionally assigned function of making tactical military decisions. Accordingly, it violates the separation of powers."

They also stated, "The determination on where to hold detainees is a tactical judgment at the very core of the president’s role as commander in chief, equivalent to decisions on the disposition of troops and the use of equipment. The question here is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held. The answer is an emphatic no. One need not accept a particularly broad view of executive authority -- let alone the Bush administration’s sweeping view that the president has “exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war” (an extravagant assertion with which we disagree) -- to see that the restrictions Congress has imposed are unconstitutional."

Craig and Sloan also noted that "congressional intrusion is fundamentally at odds" with a historical analysis of detention, in which "[d]ecisions about the location of detention have long been understood to fall within the president’s exclusive purview." In World War II, for example, "Congress passed general laws regulating the treatment of more than 7 million prisoners of war held by the United States -- including some 400,000 housed in U.S. detention facilities -- but it conspicuously did not specify in which facilities any particular prisoners could be held."

They also argued against those who "have argued that the Guantánamo restriction is legitimate because it is a limitation on appropriated funds," noting that "it makes no difference that Congress styled the ban as a funding restriction. Almost 70 years ago, in United States v. Lovett, the Supreme Court ruled that Congress may not use its appropriations power to achieve goals otherwise beyond its constitutional authority. Congress cannot, for example, condition military funding on a requirement that the president target a particular enemy combatant at a particular time and place. The principle is precisely the same with the location of detention and prosecution for detainees."

In conclusion, they wrote that "Congress has tried to force the president to maintain a specific military detention facility for specific detainees that, in his judgment, is harmful to U.S. national security and far too costly. That is no way to conduct a war, and the Constitution does not permit it." If Congress "is unable or unwilling to work with him," they added, "Obama should use his exclusive authority as commander in chief to move the limited number of detainees who cannot be transferred to foreign countries to secure institutions in the United States, shutter this notorious facility, and end this blight on American values and national security."

Here at "Close Guantanamo," we agree -- although we would also have added that this "limited number of detainees" must then either face trials or be allowed to challenge the basis of their detention in a meaningful manner, with all the additional safeguards preventing indefinite imprisonment without charge or trial that exist on the U.S. mainland compared to Guantánamo.