A comprehensive summary of GTMO policy, practices and prospects

It’s all here in the prepared testimony of Principal Deputy Undersecretary of Defense Brian McKeon before the Senate Armed Services Committee on Thursday morning.  Most of the testimony describes in detail the processes and results of recent transfers.  The testimony also explains why Senator Ayotte’s legislation is unwise and counterproductive.

Three other sections of the testimony are especially important:

1.  Plan to Close Guantanamo Detention Facility:

Our plan has three main elements.

First, we will continue the process of responsibly transferring the 54 detainees eligible for transfer.

Second, we will continue the prosecution of detainees in the military commissions process, and if possible, in the federal courts. Currently 7 detainees are being actively prosecuted under the military commission process; 5 accused of the 9/11 attacks, 1 charged with the bombing of the USS Cole, and 1 charged with actions as a senior al Qaeda commander; and 3 are in the sentencing phase or are serving sentences.

Third, we will continue and expedite the PRB process.

When we have concluded these three lines of effort, it is likely that several detainees cannot be prosecuted but who are too dangerous to transfer, even with security assurances, will remain in our custody.

Ultimately, closing the detention center at Guantanamo Bay will require us to consider additional options, including the possibility of transferring some detainees to a secure facility in the United States. The Department of Justice has concluded that in the event detainees were relocated to the United States, existing statutory safeguards and executive and congressional authorities provide robust protection of national security.

We understand that such transfers are currently barred by statute. As a result, the Government is prohibited from prosecuting any detainees in the United States, even if it represents the best – or only – option for bringing a detainee to justice. The President has consistently opposed these restrictions, which curtail options for managing the detainee population.

2.  The Administration’s Policy Regarding the Detention of Future Combatants Captured on the Battlefield:

The disposition of an individual captured in the future will be handled on a case-by-case basis and by a process that is principled, credible and sustainable. When a nation is engaged in hostilities, detaining the enemy to keep him off the battlefield is permissible and is a humanitarian alternative to lethal action.  In some cases, those detained will be transferred to third countries.  In other cases, they will be transferred to the United States for federal prosecution, after appropriate interrogation, as occurred in the case of Ahmed Warsame.  Some cases may be appropriate for law of war detention.  But the President has made clear that we will not add to the population of the detention center at Guantanamo Bay.

3.  Closure is a National Security Imperative:

The President has determined that closing this detention facility is a national security imperative.  The President and his national security team all believe that the continued operation of the detention facility at Guantanamo weakens our national security by draining resources, damaging our relationships with key allies, and is used by violent extremists to incite local populations.  It is no coincidence that the recent ISIS videos showing the barbaric burning of a Jordanian pilot and the savage execution of a Japanese hostage each showed the victim clothed in an orange jumpsuit, believed by many to be the symbol of the Guantanamo detention facility.

Forty retired military leaders — all retired general officers or flag officers — wrote the chairman and ranking member of this committee on January 28, 2015 and stated, “[I]t is hard to overstate how damaging the continued existence of the detention facility at Guantanamo has been and continues to be.  It is a critical national security issue.”  The letter continued, “[M]any of us have been told on repeated occasions by our friends in countries around the world that the greatest single action the United States can take to fight terrorism is to close Guantanamo.”

This letter is signed by General Charles C. Krulak, a retired Commandant of the Marine Corps, Major General Michael R. Lehnert, the first commanding general of the joint detention task force at Guantanamo, General Joseph Hoar, the former head of CENTCOM, General David M. Maddox, the former head of the U.S. Army in Europe, and thirty-six other retired senior military leaders.

Many other military leaders acknowledge the need to close this detention facility. Admiral Michael Mullen and General Martin Dempsey, the former and current chairman of the Joint Chiefs of Staff, support Guantanamo closure.  In 2010, General David Petraeus, then the commander of CENTCOM stated, “I’ve been on the record on that for well over a year as well, saying that it [Guantanamo] should be closed. . . . And I think that whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside. . . . Abu Ghraib and other situations like that are nonbiodegradables. They don’t go away. The enemy continues to beat you with them like a stick.”

Senior figures across the political spectrum have made clear that Guantanamo poses profound risks to our national security and should be closed.  Former Secretaries of Defense Robert Gates and Leon Panetta, and the current Secretary of Defense, Chuck Hagel, all support Guantanamo closure.

Finally, President George W. Bush concluded that the Guantanamo detention facility was “a propaganda tool for our enemies and a distraction for our allies.”

 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).