What it Really Means to “Close Guantánamo”

[Editors’ NoteThis post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.]

For a range of reasons, Guantánamo has been back in the news in the past few weeks. Although the 13th anniversary of the opening of the detention facility came and went on January 11 without much fanfare, (1) there continues to be a steady stream of headline-generating transfers of detainees who have been “cleared” for such dispositions; (2) the President went out of his way in the State of the Union Address to reaffirm his commitment to closing the detention facility–“it’s time to finish the job”; (3) a remarkable memoir by one of the detainees was published (and is skyrocketing up bestseller charts); and (4) a bizarre love triangle and death cost the Naval Station commander his job, at least temporarily. For neither the first nor last time, Guantánamo has proven too strange for fiction. That’s why I’d already been planning to write about it long before my friend Ben Wittes’s Lawfare post from last Wednesday, with the typically understated title “The Arguments About Guantanamo are Nearly All Wrong, Disingenuous, Irrelevant, or Just Plain Dumb.” Ben’s thesis, in a nutshell, is that, “on all sides” of the debate over closing the Guantánamo detention facility, the argumentation has been “lousy,” Thus, in Ben’s view, conservatives are “embarrassing themselves” by overselling the dangers of closing the facility, while progressives are “little better,” offering arguments in support of closure that are both specious and naive. As a result, “The whole discussion is an exchange of bad arguments that shouldn’t move a thinking public,” because “It makes for a terrible debate on both sides.”

The fundamental problem with Ben’s post is not in its critique of the arguments that have been offered by the two camps he identifies; rather, it’s in the pervasive assumption that the debate over closing Guantánamo only has these two camps–the folks who want to keep the detainees at Guantánamo in perpetuity, and those who don’t believe the government should ever have had the authority to detain these men without trial. It’s easy to be critical of a debate when one caricatures the “sides” and ignores positions that don’t fit within that narrative. But as I explain in the post that follows, there is, indeed, a significant mass of individuals in this debate who believe both that we should close Guantánamo and that we should not necessarily release all of the remaining detainees when that happens–a group that includes the President of the United States. Readers may not agree with this position, but at the very least, we should (1) not pretend it doesn’t exist in the interest of scoring rhetorical points; and (2) think carefully about whether a middle-of-the-road compromise recognizing this position might be better than the alternatives. Simply put, before criticizing or celebrating folks who support “closing Guantánamo,” it would behoove all of us to understand what that statement really means.

As of today, 122 detainees remain at Guantánamo–just over half of the facility’s population on the day in January 2009 when President Obama vowed to close the facility and signed an Executive Order to that effect. But like Zeno’s paradox, the 50% reduction in population does not actually mean we’re halfway to “closing” Guantánamo, since the releases have only been of those detainees who have been cleared for transfer. 54 such detainees remain–most of whom are from Yemen, and whose transfer is thus complicated by the deteriorating security situation there. But even assuming, for the sake of argument, that the Administration is able to find a country to take in each of those 54 detainees, that still leaves 68 men who, under the Administration’s own approach, are not eligible for such relief, because they are either among those detainees who can’t be tried but are, in the government’s view, too “dangerous” to be released, or those detainees who are still slated for trial by military commission, whether at Guantánamo or elsewhere. (This number is somewhat fluid, since many of the 68 may end up being “cleared for release” after proceedings either before PRBs or military commissions. But it certainly seems likely that there will eventually be somewhere between two- and five-dozen detainees who, in the government’s position, shouldn’t be transferred.)

I don’t mean to downplay the plight of the 50-plus detainees who have been cleared for release. If anything, it’s far more disturbing that they remain in detention than those who have not been so cleared. But in the debate over “closing Guantánamo,” they’re the “easy” cases, not the hard ones, since the principal obstacles to releasing them are diplomatic–finding some country to take them. For the detainees the government has not cleared for transfer, the obstacles are far more fundamental: (1) the Administration does not want to release them; and (2) Congress will not let the Administration move them into the United States for continued detention and/or trial by military commission. As a result, “closing Guantánamo” does mean ending detention for those detainees who have been cleared for release. But for the Administration, at least, “closing Guantánamo” does not mean ending detention for those detainees who have not been so cleared. Rather, it means finding somewhere else (presumably within the United States) to continue to hold–and, perhaps, try–them.

That’s why, when Ben wrote last week that “We’re debating the wrong question—the location of a policy instead of a policy itself,” he was dramatically oversimplifying things. For detainees who have been cleared for release, transferring them from the location of the detention (Guantánamo) is a referendum on the policy, since the government has no interest in continuing their detention–let alone in doing so elsewhere. For detainees who have not been cleared for release, the location of the detention (Guantánamo) may not be the entirety of the issue (because they will still be detained elsewhere), but it’s a problem in its own right–for a range of optical, legal, political, and logistical reasons that have been well-documented elsewhere.

That is to say, Ben’s working assumption appears to be that the detention debate would look exactly the same were the (un-cleared) detainees held at a facility within the United States–which is why the location is, in his view, such a silly focus for the debate. But there are plenty of reasons to disagree with that–and to see a marked difference between, on the one hand, detention at a facility with a sordid history; a remote and largely inaccessible location outside the territorial United States; and where fundamental questions remain as to the basic rights of the detainees; and, on the other hand, detention within the United States with none of that historical and political baggage; and consistent with unquestioned (as opposed to debatable) access to the full panoply of legal and constitutional protections available to all other federal prisoners.

Ben may think these are distinctions without a difference, but my own view is that they’re potentially quite dramatic–perhaps all the more so for the commissions, which may be far less susceptible to at least some of the criticisms they’ve received if they’re conducted in largely public view (and with greater and easier public access) within the United States. Simply put, for the as-many-as-68 detainees who have not been cleared for release, it may be true that “closing Guantánamo” wouldn’t end their detention. But it doesn’t necessarily follow that it would therefore have no effect, salutary or otherwise.

Properly calibrated, then, the real debate over “closing Guantánamo” reduces to what to do with the un-cleared detainees. I’ve argued elsewhere for a “least-worst” solution–for moving them into the United States and onto a different legal footing, to wit, administrative detention under section 412 of the USA PATRIOT Act as opposed to military detention under the increasingly outdated 2001 Authorization for the Use of Military Force. Others, like my friend and colleague (and co-blogger) Jen Daskal, have argued that we shouldn’t close Guantánamo exactly to avoid setting that kind of potentially disturbing precedent. And an obvious third way, of course, would be to continue the existing legal authorities (so long as they remain on the books), but to push Congress to repeal the transfer restrictions so that the detainees can be held under the AUMF, but stateside.

But lest readers think the purpose of this post is to argue why one of these approaches is better than the rest, it isn’t. Rather, my point is that, contra Ben’s post from last week, there is plenty of nuance in the debate over “closing Guantánamo.” That may only make the debate harder–but, if nothing else, those difficulties may help to explain why President Obama’s mandate has proven so intractable. At the very least, it certainly doesn’t advance the debate to criticize oversimplified caricatures of what the debate is actually about. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).