A Roadmap for the Closure of Guantánamo

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By Andy Worthington, September 29, 2020

With just five weeks to go until the Presidential Election, we’re pleased to note that, recently, six organizations involved in the long struggle to try and get the prison at Guantánamo Bay closed — the ACLU, Human Rights First, the Center for Victims of Torture, the Center for Constitutional Rights, the National Religious Campaign Against Torture, and September 11th Families for Peaceful Tomorrows — published detailed proposals for how, if voters remove Donald Trump from the White House in November, a new administration can move towards the closure of the prison.

Following up on our thoughts about this topic, which we published in July, in an article entitled, If Elected in November, Will Joe Biden Close Guantánamo?, we’re cross-posting below the NGOs’ proposals, as published on the Just Security website, which we think deserve to be as widely read as possible.

We are particularly taken with two suggestions put forward by the NGOs: firstly, that the executive branch can expedite transfers by not opposing detainees’ habeas cases"; and, secondly, that progress towards the prison’s closure can also be effected by "charging a small subset of the remaining detainees in federal courts."

On the former point, the current law governing the disposition of Guantánamo prisoners — the NDAA (National Defense Authorization Act), "which is likely to remain at least through the end of Fiscal Year 2021" — prevents "transfers to the United States for any purpose, including for medical treatment or criminal prosecution," bans transfer to certain countries (Libya, Somalia, Syria, and Yemen), and imposes a set of conditions on the defense secretary that must be fulfilled before any release can take place. However, as the NGOs note, there has rarely been "meaningful consideration of what the law permits," rather than what is prevented.

Looked at this way, because "the foreign transfer certification requirements don’t apply when a detainee’s release or transfer is pursuant to the order of a U.S. court or competent tribunal that has jurisdiction over the case," the option for the next administration of "not opposing detainees’ habeas cases" could be a very constructive way forward. We have previously written about the necessary revival of the Office for Guantánamo Closure to facilitate transfers — to home countries, and to third countries where that is not viable, or not considered viable — which was set up by President Obama in the State Department, and played a huge role in the release of nearly 200 prisoners under Obama, but has been effectively dissolved under Trump. However, we are impressed that the NGOs have gone one step further, and propose that what is needed is "a directorate, or its equivalent, at the National Security Council."

On the second point — charging prisoners in federal court — the NGOs explain that "Congress doesn’t need to lift the U.S. transfer ban in order to use the federal judiciary," because, as Steve Vladeck, professor of law at the University of Texas School of Law, has explained, "under the right circumstances, a Guantánamo detainee can plead guilty via videoconference in an Article III court." As the NGOs proceed to explain, "Indeed, with the consent of all parties, the executive branch can negotiate and accept pleas, and effectuate sentences, in federal court but remotely from Guantánamo, without running afoul of the Federal Rules of Criminal Procedure or relevant constitutional protections. Such detainees could then serve out any remaining time on their sentences abroad, subject to terms of their pleas deals and agreements with transfer countries."

On prisoner releases, the NGOs also call, as we do, for the "immediate transfer of the five detainees long approved for transfer by the Guantánamo Review Task Force or the Periodic Review Boards (PRBs)," and also insist that "[t]he remaining men who have not and will not be charged with a crime should be repatriated or resettled to third countries as soon as possible," providing detailed information about how a new administration should proceed if further reviews are deemed necessary.

We hope you have time to read the whole article, and that you’ll share it if you find it useful. We need as many people as possible thinking about, and discussing these topics as the election approaches.

Toward a New Approach to National and Human Security: Close Guantánamo and End Indefinite Detention
By Hina Shamsi, Rita Siemion, Scott Roehm, Wells Dixon, Rev. Ron Stief and Colleen Kelly, Just Security, September 11, 2020

On January 11, 2021, the detention facility at the U.S. Naval Base in Guantánamo Bay, Cuba will enter its 20th year. Forty Muslim men remain captive there, at a cost of $540 million per year; $13 million per detainee. Twelve of them [see our footnote 1] have been charged in the fundamentally broken military commission system, including five men accused of varying degrees of responsibility for the September 11, 2001 attacks whose case has not yet gone to trial and won’t anytime soon.

Many of the 40 men are torture survivors, some of them formerly disappeared at "black sites" before being sent to Guantánamo. All of them have been exposed to the physical and psychological trauma associated with prolonged indefinite detention. They are also aging rapidly and increasingly exhibiting complex medical conditions that staff at Guantánamo are not equipped to manage, such as severe coronary vascular disease, complex post-traumatic stress disorder, and traumatic brain injury. Any condition that requires magnetic resonance imaging (MRI), computerized tomography (CT scans), or cardiac catheterization cannot be treated adequately at the detention facility.

Putting an end to the extralegal, abhorrent, and wasteful policies and practices with which Guantánamo will forever be synonymous is a human rights obligation, a moral responsibility, and a national security imperative. That’s why calls for its closure have ranged from President Bush to President Obama, the military to medical professionals, international jurists to a wide range of human rights organizations and local activists, to the late Senator John McCain.

Closing Guantánamo responsibly is not an intractable problem, the checkered history of prior efforts notwithstanding. It can be done, and in relatively short order, if decision-making is swift, decisive, and governed by the following principles:

There is no perfect solution

After nearly two decades of indefinite detention, and multiple attempts at a thoroughly failed military commission process, there is now no perfect solution for finally turning the page on this dark chapter — far from it. Pursuing justice for the September 11, 2001 attacks became immediately complicated when the government subjected the accused to torture and detained them on an island that was meant to be outside the law.

Complications can still be managed, however, and the United States has to account for several sets of obligations, including the Constitution, human rights, and humanitarian law (especially the U.N. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, or CAT). Ensuring fidelity to professed American ideals will make solutions stronger and more sustainable.

Take full advantage of the options that current law allows

The legal landscape around closing Guantánamo is typically (and understandably) viewed from the perspective of what’s prohibited. Indeed, current law — which is likely to remain at least through the end of Fiscal Year 2021 — restricts detainee transfers to the United States for any purpose, including for medical treatment or criminal prosecution. There’s a similar limitation on transfers to Libya, Somalia, Syria, and Yemen. And the Secretary of Defense must certify a set of conditions — some of which have at times proven onerous — prior to other foreign transfers (including congressional notification 30 days in advance).

Rarely is there meaningful consideration of what the law permits. Two such options are especially important: first, the foreign transfer certification requirements don’t apply when a detainee’s release or transfer is pursuant to the order of a U.S. court or competent tribunal that has jurisdiction over the case. So the executive branch can expedite transfers by not opposing detainees’ habeas cases. There is no requirement in law or in practice that the government contest detainees’ habeas petitions. And indeed, there is precedent for the government ceding the writ in some cases: for example, in 2013, the Obama administration withdrew its opposition to Ibrahim Idris’ habeas petition (he was subsequently repatriated to Sudan).

Second, charging a small subset of the remaining detainees in federal courts already can be an integral part of the path towards closure despite the ban on transfers to the United States. As Steve Vladeck has explained in depth, Congress doesn’t need to lift the U.S. transfer ban in order to use the federal judiciary because, "under the right circumstances, a Guantánamo detainee can plead guilty via videoconference in an Article III court." Indeed, with the consent of all parties, the executive branch can negotiate and accept pleas, and effectuate sentences, in federal court but remotely from Guantánamo, without running afoul of the Federal Rules of Criminal Procedure or relevant constitutional protections. Such detainees could then serve out any remaining time on their sentences abroad, subject to terms of their pleas deals and agreements with transfer countries.

Don’t wait for Congress 

To say the least, Congress has been supremely unhelpful in facilitating closing Guantánamo, especially when plans have involved bringing detainees to the United States, including for prosecution in federal courts. (See, for example, the Senate’s 90-9 vote prohibiting funding for transfer, release or incarceration in the U.S. when the Obama administration tried to go that route in 2009. Or the seven consecutive years — through fiscal year 2020 — when Congress debated then ultimately decided to forgo even temporary U.S. transfers just for emergency medical care when treatment isn’t available at Guantánamo).

This dynamic isn’t likely to change anytime soon. Assuming the next president — whoever it is — doesn’t want to have to stand before the nation on the 20th anniversary of 9/11 and explain why the military commissions continue to stagger along and Guantánamo remains open, he can’t wait for the legislature. The good news is he doesn’t have to.

Below is a roadmap for closing the prison that the next president can execute within the four corners of current law and through existing funding. The process should begin with revoking Executive Order 13823 — which mandates the continuation of detention operations at Guantánamo — then proceed as follows:

Immediately establish internal accountability and oversight mechanisms

It is critical that senior White House officials are charged with ensuring that Guantánamo is closed expeditiously, and that the process begins immediately. Primary responsibility should rest with a senior director of a reconstituted multilateral affairs and human rights directorate, or its equivalent, at the National Security Council ("senior director"). This is because the primary work involved includes negotiating with foreign countries, ensuring human rights and international humanitarian law obligations are met in the process of transferring or trying any of the detainees, and working with receiving states to monitor humane treatment and, where applicable, that fair trial guarantees are met. Thus, responsibility for this NSC-led process should not be assigned to any of the defense, intelligence, or counter-terrorism directorates, although their assistance will be required at various stages in the process.

The senior director should have the responsibility to:

▪ Identify relevant agency personnel with appropriate authority who will be responsible for addressing the recommendations set out below that are relevant to their agency. At the State and Defense Departments, this could include reestablishing Special Envoy for Guantánamo Closure Offices, or something comparable.
▪ Ensure inter-agency participation, including through a regularly convened NSC-led inter-agency policy process.
▪ Resolve inter-agency disputes and ensure full implementation of final decisions.

Swiftly transfer detainees who have not been or will not be charged with a crime

This process should begin with immediate transfer of the five detainees long approved for transfer by the Guantánamo Review Task Force or the Periodic Review Boards (PRBs). The remaining men who have not and will not be charged with a crime should be repatriated or resettled to third countries as soon as possible. If the government believes that additional administrative review is necessary prior to any transfer of a detainee who isn’t already approved for transfer that process must move quickly. In addition to the procedural protections in the PRB process, any new administrative review should adhere to the following substantive and procedural requirements:

▪ Factors weighing substantially in favor of transfer, and that cannot weigh against transfer, should include:
▪ Already prolonged indefinite detention, including any time in U.S. custody prior to transfer to Guantánamo.
▪ Credible allegations of violations of CAT for which U.S. personnel bear direct or indirect responsibility.
▪ Compromised health, scope and complexity of projected medical needs, and Guantánamo’s limited medical care capabilities.
▪ Factors that should not be considered in transfer recommendations or determinations include:
▪ A detainee’s historical or contemporary refusal to participate in all or part of the Periodic Review Board process or any prior review process.
▪ Any disciplinary information related to confinement at Guantánamo.
▪ Any behavioral assessment based in any way on a detainee’s conduct while detained at Guantánamo.
▪ Any “jail house chatter” or similar statements made by detainees while in confinement at Guantánamo.
▪ Detainees’ counsel and/or a personal representative should have full access to all information that will be evaluated in making transfer recommendations or determinations, including any classified detainee compendia such as those that have previously been provided to Periodic Review Board members.
▪ The original basis for a detainee’s capture and detention cannot be the determinative factor for a recommendation or determination to continue detention, and any such recommendation or determination must be based on a specific, legitimate, and serious need — and lawful basis — to continue to detain.

Detainees who are transferred must not be sent to a country where there are substantial grounds for believing they would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment (CIDT), including continued indefinite detention without charge or trial, or otherwise be forcibly transferred. Nor should detainees be subject to transfer conditions that violate their human rights.

To facilitate expeditiously negotiating transfer agreements with foreign governments, the U.S. should agree to:

▪ Provide sufficient funding for effective rehabilitation and reintegration, which in any individual case may include, but not be limited to, medical and psychological care, housing, education, job training, a living stipend for some period, and family reunification.
▪ Provide detainees (through their counsel for those represented) and foreign officials with detainees’ complete medical records, declassified if / where necessary, subject to detainees’ consent.
▪ Permit foreign government medical personnel to examine detainees, subject to detainees’ consent.
▪ Permit diplomatic officials from foreign governments to participate in visits or interviews; (i.e., such visits should not be limited to security personnel).
▪ To the maximum extent possible, involve counsel in the transfer negotiation process, in particular with respect to providing foreign governments with holistic and accurate information (whether proactively or in response to questions).
▪ Continue to allow the International Committee of the Red Cross to conduct "exit interviews" with detainees who are designated for transfer, and ensure such interviews are conducted with sufficient lead time to adequately address any resulting concerns.
▪ Work with resettling governments to ensure that resettled detainees are provided with a secure, recognized legal status, with a clear track to permanent residency for detainees who wish to reside permanently in transfer countries.

As discussed above, the government should agree to drop its opposition to detainees’ existing habeas petitions — or to not oppose new ones — in order to facilitate court-ordered releases.

Pursue plea agreements with detainees the government is prosecuting or will prosecute 
 
Where sufficient evidence untainted by torture and/or CIDT exists to prosecute or continue to prosecute detainees, the administration should pursue plea agreements whenever possible in those cases.

Plea negotiations should be governed by the following principles:

▪ There is no historical analogue to this context, which provides an opportunity for creative solutions.
▪ Federal judges can hold arraignments, take pleas, enter judgements, and impose sentences via videoconference from Guantánamo with consent of all parties.
▪ There are significant rights and accountability concerns on all sides of these cases that must be accounted for.
▪ Victims and their family members deserve to know, and should be provided, as much detail as possible about the planning and execution of the September 11, 2001 attacks, or other attacks in which the defendants were involved.
▪ For plea deals that recommend incarceration beyond time already served at Guantánamo, the administration should prioritize negotiating agreements with foreign governments that allow sentences to be served outside the United States, subject to any terms of the plea deal regarding conditions of confinement.

For any detainee for whom there is not sufficient evidence, untainted by torture and/or CIDT, to continue to prosecute, the administration should withdraw any charges and apply the steps outlined above for detainees who have not been charged with a crime.

* * * * *

President George W. Bush transferred about 500 detainees from Guantánamo. President Obama transferred almost 200, 50 of whom were repatriated or resettled during his last nine months in office, with closure a priority and the clock ticking. To be sure, there are challenges associated with negotiating dispositions for some of the remaining 40 that the previous 50 did not present. There will be hard choices, and thorny questions will undoubtedly arise that require creative navigation.

But there are tools and strategies available to facilitate closure (as outlined above) that have not yet been utilized to the fullest, or in many cases at all, that could produce results quickly and deliver solutions even in what are seen as the most difficult cases. With the political will to pursue these paths, the next President can finally close Guantánamo, ensure a return to policies that comply with the Constitution and human rights, and generate good will in the international community by living up to professed American ideals.

Hina Shamsi, the Director of the ACLU’s National Security Project
Rita Siemion, the Director of National Security Advocacy at Human Rights First
Scott Roehm, the Washington Director of the Center for Victims of Torture
Wells Dixon, a Senior Staff Attorney at the Center for Constitutional Rights
Rev. Ron Stief, the executive director of the National Religious Campaign Against Torture
Colleen Kelly, a co-founder of September 11th Families for Peaceful Tomorrows

Footnote 1: Actually, only nine of the 40 men still held are currently facing, or have faced charges in the military commissions: Khalid Shaikh Mohammad, Ramzi Bin al-Shibh, Walid Bin Attash, Ali Abdul Aziz Ali, Mustafa al-Hawsawi, Abd al-Rahim al-Nashiri and Abd al-Hadi al-Iraqi are currently involved in protracted pre-trial hearings, while Majid Khan is still awaiting sentencing after a plea deal in 2012, and Ali Hamza al-Bahlul received a life sentence after a conviction in 2008, most elements of which have been overturned on appeal.

Note: This was Part I of a four-part feature on Just Security marking the 19th anniversary of the 9/11 attacks. Please also see the following:

Part II: Uphold the Prohibition on Torture
Part III: End Unlawful, Secret, and Unaccountable Use of Lethal Force
Part IV: End Endless Wars