Closing Guantánamo, Episode XXVIII: This Time, We Really, Really (Really!) Mean It…

Word has it that, later today, the Obama administration will release its long-ballyhooed Plan. To. Close. Guantánamo. (Not to be confused, mind you, with the original plan from back in 2009, or the one after that, or the one after — well, you get the idea.) I could’ve waited to write this post until the details emerge, but — let’s be honest — the details aren’t going to matter. (I’ll also be teaching a class, but that, too, is just a detail.) After all, (1) there almost certainly won’t be any ideas in the PTCG that we haven’t already heard, discussed, and debated before (except now with more cowbell?); and (2) to be politically viable in light of the existing statutory transfer restrictions, the PTCG is going to require at least some congressional buy-in, which just isn’t (you guessed it) politically viable — at least until, at the earliest, November 9 (the day after Election Day). This is all just theater at this point, and not very original or compelling theater, at that. Maybe, like the new Star Wars movie, it will at least be pretty? It will almost surely be at least as derivative…

Instead, I thought I’d use this opportunity to illuminate four points that are almost certainly far more relevant to the future of Guantánamo, no matter how much longer that turns out to be, than anything in the PTCG:

I.  The PRBs Keep PRB-ing

You may have missed this on Friday, but we learned that a Guantánamo Periodic Review Board (PRB) cleared another detainee — Yemeni Majid Ahmed, who was once part of the “Dirty 30” of Osama bin Laden’s bodyguards. The “clearance” is significant because (1) it means Ahmed is eligible for transfer to a foreign country, if appropriate security conditions can be arranged (35 of the 91 remaining detainees are now so eligible); (2) it removes him from the category of “forever detainees” that, as we’ve discussed in the past, is the most intractable subset of the Guantánamo detainee population; (3) it cuts the size of that group down to 24 — half of the total of 48 first identified as such by President Obama’s Detainee Review Task Force; and (4) it brings the “success” rate for detainees before the PRBs to 18 out of 21 — that is, in six out of every seven cases where a previously uncleared detainee is considered, the PRB approves his clearance, and, as such, his eligibility for transfer. I’ve written before about why this success rate is stunning.

For present purposes, it also means that, every day, the size of the group of detainees with whom we will be left even if all of those cleared for transfer are sent somewhere else (the one thing that can happen without Congress) is getting smaller. That number will never be zero while the AUMF is still on the books, but there’s a big difference between 24 and 48 — and PRB hearings are continuing apace at Guantánamo. (If you’re curious, here is the updated detainee population chart, as maintained by Covington & Burling’s Brian Foster.)

II.  Another Bad Day for Military Commissions in the D.C. Circuit

Also last week, the military commissions appeared to have another bad day at the D.C. Circuit. As Helen Klein recapped over at Lawfare, a three-judge panel (Tatel, Griffith, & Sentelle, JJ.) showed little support for the government’s argument that it should abstain from deciding Abd al Rahim al-Nashiri’s pre-trial challenge to the military commission’s jurisdiction over pre-September 11 offenses, such as the 2000 bombing of the USS Cole. (Full disclosure: I filed an amicus brief on behalf of the National Institute of Military Justice arguing against abstention.) Of course, a holding that courts needn’t abstain does not doom Nashiri’s prosecution; most likely, it sends the merits of his jurisdictional challenge back to the district court. But (1) the merits are not remotely open-and-shut in the government’s favor (did anyone besides al-Qaeda think we were in an active armed conflict with them in 2000?); and (2) among other things, fully litigating those merits now will not exactly speed things up in the (at the moment, stayed) proceedings before the trial court.

To be sure, Nashiri is just one case. And unlike al Bahlul (where the en banc D.C. Circuit’s ruling remains pending), whatever happens there can’t (and won’t) directly spillover into other commission cases. But for neither the first nor the last time, last Tuesday’s argument highlights just how wasteful, expensive, and unproductive the military commissions have been — and how little, at the end of the day, they may have accomplished (and are likely to accomplish going forward). Simply put, the commissions are, at best, a vexing footnote to the close-Guantánamo conversation — providing lots of additional headaches, and few solutions.

III.  There Probably Is a Way to Get Moderate Republicans on Board

Every January, I seem to write an op-ed (or long blog post) about how to close Guantánamo. Here’s the 2014 version (use the USA Patriot Act!); and here’s 2015 (don’t oversimplify the debate!). This year, I joined forces with Ben Wittes in the Washington Post to offer a five-step solution to closing Guantánamo — and one that ought to attract the support of moderate Republicans and Democrats (if they still exist) without alienating too much of either party’s base so as to torpedo its chances.

In a nutshell, the proposal is for Congress to expressly authorize the transfer of the detainees into the United States; to identify with specificity the facility at which their continuing detention (along with the vanishing set of defendants convicted by Guantánamo military commissions) is to be undertaken; to provide that individuals held at that facility cannot be released except pursuant to a judicial order or for purposes of removal and deportation to a foreign country; and to otherwise expressly take no position on the substance of the government’s detention authority in current or future cases. If folks actually wanted a compromise plan to close Guantánamo (as opposed to just the opportunity to demagogue the issue), the op-ed is hopefully a useful starting point… And if not, well, it’ll be a good piece to look back on when I’m writing the 2017 edition…

IV.  The Preposterous Politics of an “Election Year”

I’ve saved perhaps the most important point for last: It’s an Election Year, stupid! And if that means that Congress won’t exercise its constitutional prerogatives to, among other things, authorize the use of military force against ISIL or confirm a nominee to the Supreme Court (notwithstanding Mitch McConnell’s far more persuasive 1970 law review article on the subject), then it sure as hell means no closing of Guantánamo. So the PRBs will keep plugging away; the government will keep transferring small bunches of detainees to foreign countries; the military commissions will keep doing… whatever it is that they’re… not really doing; and Election Day will come and go, with somewhere around 65 men still enjoying US hospitality on (albeit not in) Cuba. In other words, it just won’t matter how good (or bad) the PTCG is.

Instead, what will matter is what happens in November. In a scenario (however hypothetical) where (1) the Democratic nominee wins the presidency; and (2) the Democrats pick up seats in (and perhaps even retake) the Senate, it’s not that hard to imagine that a President committed to closing Guantánamo before January 20 would find a somewhat more receptive audience in the lame-duck, Republican-controlled Congress that goes out of business on January 3. As with the battle over Justice Scalia’s seat on the Supreme Court, there may well come a point where Republicans in the 114th Congress would rather make a deal with President Obama than leave things to the 115th Congress and his successor…

You may, of course, dismiss the above as preposterously optimistic/pessimistic/mystic(?), both with regard to what’s going to happen at the polls and what might happen thereafter. Fair enough. But it’s a lot more realistic to talk about that than to waste any more time, ink, or breath on the new Plan. To. Close. Guantánamo.

Editor’s note: This post was originally published at 12:01am on February 23, 2016. 

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).