Challenging the Guantánamo Narrative: “Too Dangerous to Transfer”

This post is the latest installment of our Monday Reflections feature in which a different Just Security editor takes an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

Last week, administration officials testified before Congress on their plans to close Guantánamo. (Marty posted the testimony here.) Of the 122 prisoners remaining, 54 are cleared for transfer (something that requires the unanimous consent of the Secretaries of Defense, State, and Homeland Security, the Chairman of the Joint Chiefs of Staff, the Director of National Intelligence, and the Attorney General); another 10 are facing military commission prosecutions or serving their sentence; and some subset of the remaining 58 will ultimately end up in one of those two categories— either cleared for transfer or subject to prosecution by military commissions or civilian court.

The plan is a continuation of the long-standing efforts to whittle down the prison’s population — something that was started under George W. Bush, has been advocated for by dozens of military leaders on the grounds that Guantánamo has become a potent recruiting tool for terrorists (see Jack Goldsmith on this point here), and has continued, albeit in fits and starts, during the Obama administration.

Yet, the Senate Armed Service Committee is now poised to block even these modest—and once universally agreed upon—steps toward moving out those who have been cleared with unanimous consent to be transferred elsewhere. Legislation introduced by Senator Kelly Ayotte and co-sponsored by 25 others, including Senators John McCain and Lindsay Graham, prohibits the transfer of any detainee who has ever been declared a high or medium threat by Joint Task Force Guantánamo (JTF Gitmo), the Department of Defense outfit that runs Guantánamo. But as those with historical knowledge of Guantánamo know, many of these JTF Gitmo determinations were made in the heyday of Guantánamo, where every single detainee there was labeled the “worst of the worst,” abusive interrogations were a regular occurrence, and officials on the ground had little capacity to distinguish fact from fiction. Once the dust had cleared, it turned out that some of those initial assessments were accurate, but certainly not all. In fact, all 54 detainees now cleared for transfer by unanimous consent of six secretary-level officials were once deemed high or medium-risk by JTF Gitmo. In other words, none of the remaining Guantánamo detainees could be transferred out if the Ayotte bill becomes law.

By all accounts, however, the bill will pass out of committee this week with a solid majority in support. Given that Senator John McCain, now the Chair of the Senate Armed Service Committee, ran for the presidency in 2008 pushing for Guantánamo’s closure, this seems like politics over policy. Nonetheless, and not for the first time with respect to Guantánamo, the politics may prevail.

In light of these antics, it may not be the most opportune time to challenge what is an almost universally accepted narrative about Guantánamo: that even after those cleared for transfer are moved out, there will remain some group of detainees — perhaps just a handful, perhaps several dozen — that cannot be prosecuted, but are, in the government’s words, “too dangerous” to release. Thus, the narrative goes, we must keep them in our custody for the foreseeable future, ideally forever. When political leaders, whether Democratic or Republican, talk about “closing Guantánamo,” they take the issue of the un-transferable detainees as a given, requiring somewhere else, and possibly some additional legal authority, to hold them.

But why is this so? Do we really think that a few dozen detainees — detainees that would inevitably be subject to intense surveillance and affirmative restrictions on their activities and movements, if ever transferred out of Guantánamo — pose the nation such a grave threat to our national security that they can never be sent elsewhere? In this op-ed in Newsday, I suggest we need to re-evaluate the assumption that the category of “too dangerous” to transfer is an immutable one. As I wrote:

The common assumption is that these men [deemed too dangerous to transfer] will either spend the rest of their lives in Guantánamo or at a supermax prison within U.S. borders. Just Thursday administration officials highlighted that even with stepped-up transfers and prosecutions, several detainees would likely fall within this category.

This is a faulty assumption for at least three reasons.

First, the fact that they were labeled “too dangerous” in 2010 [or anytime beforeor thereafter] does not mean that they will retain their high-danger status in perpetuity. In fact, the number of detainees who fall within this category has dropped by 25 percent — from 48 to 35 — in just four years. It turns out that — after a decade-plus of incarceration, in which detainees grow older, less agile, and increasingly removed from the action — high-level threats can become less threatening.

Second, we can’t, for better or worse, both maintain our value system as a liberal democracy that abides by the rule of law and also demand a risk-free world. If we did, we’d never release anyone from prison. But the law doesn’t allow that, just like the law does not allow us to continue to hold these men if and when the armed conflict which justified their detention comes to an end.

Of course, news about recidivism among released Guantánamo detainees raises legitimate alarm bells. But despite some exaggerated reporting, confirmed recidivism rates are quite low — around 6 percent of detainees transferred since 2009. Many have since been recaptured or killed. (To put this in context, the Department of Justice estimates recidivist rates among violent offenders released from state prison in the United States at around 70 percent.)

Third, unlike the Kouachi brothers, who slipped through the cracks as they plotted the attacks on the Charlie Hebdo weekly in Paris, these are men whom everyone will have their eyes on. Both the United States and any recipient nation will demand that. Any one of these men who seeks to rejoin the fight will almost certainly be noticed and arrested, if not (depending on the circumstances) killed.

No one is suggesting that closing Guantánamo is simple. But with two years to go, Obama needs to be relentless in his pledge not to relent. In principle, and not just in name. And Congress needs to stop trying to thwart him.

To be clear, I am not — and don’t intend to be — blind to the political reality. As Steve, Ben Wittes, and many others have stated, these men are not likely to go anywhere anytime soon. And, as a result, the debate that Steve has initiated over at Lawfare — about whether they should be held in the United States or Guantánamo in the interim — is an important one to have.

But as Steve knows (and as my Newsday piece also makes clear), I disagree with him and others who argue that the “too dangerous” to transfer detainees should be moved to the mainland: I am not convinced that any increased due process rights will mean much; I have significant concerns about the effect on living conditions; and I worry about the precedent that it sets. While Steve seems to think that the detention regime he proposes can and should be limited to the legacy detainees at Guantánamo, it is hard to imagine that once such a system for detaining terrorists were in place, that it wouldn’t be employed in the future. Jane Harmon and Jack Goldsmith, for example, affirmatively advance such a regime — proposing a system of administrative detention modeled after civil commitment that could be used to hold dangerous terrorists, de-linked from any armed conflict. But who decides what constitutes a sufficient danger? How can we be sure? Why would anyone go through the trouble of prosecution if this alternative were available in its place? Perhaps, most importantly, it’s not at all clear that such an alternative system of detention would solve the problem that Harmon, Goldsmith, and just about everyone who advocates closure of Guantánamo is worried about: it’s propaganda value for terrorists. Do we really think that the terrorists will fall for the charade any more than you or I? True, Guantánamo will be closed, but the system of detention without charge which has become a rallying cry for our enemies will remain.

That said, I welcome the discussion. The debate about what do with the men who are “too dangerous” to transfer is a necessary one. Anyone who understands the political reality needs to acknowledge that. And there needs to be a serious discussion about where these detainees be held for now. At the same time, however, we can’t and shouldn’t confuse the political reality — and the underlying narrative from which its stems — with incontrovertible fact. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).