Maybe Dismantling the GTMO Closure Office Wasn’t Such a Good Idea

As recent events reinforce, dismantling the Office of the Special Envoy for Guantanamo Closure at the Department of State was not such a good idea. Although obscured by the political dimensions of its name, the GTMO Closure Office (or S/GC) was responsible for work that remains vitally important to our national security —even in the Trump administration and even in the face of President Donald Trump’s pledge to “load GTMO up with bad dudes.” For eight years, until its closing, the office had primary responsibility for negotiating all detainee transfers, including those pursuant to court order or plea agreements. The office also had primary responsibility for monitoring and supporting previous detainee transfers, including conducting the diplomacy necessary to ensure that such transfers are successful. Today, the office is all but closed, with its responsibilities scattered and diffused without being formally reassigned. The one staff member still on its books has been reassigned elsewhere in the State Department.

In recent weeks, Trump administration failures have brought into focus the responsibilities previously assigned to S/GC and now apparently unassigned within the State Department. In February, Ahmed al Darbi was to be transferred to Saudi Arabia in fulfillment of a plea agreement, but as of today, he remains at GTMO. And, last week, Senegal apparently deported either one or both of the Libyan-national former GTMO detainees resettled there two years ago.

At the same time—and notwithstanding unfulfilled campaign pledges—malaise seems to permeate the rest of GTMO policy. The detainee population is 41, just as it was on the day President Trump took office. The five men whom the United States already determined could be transferred, subject to appropriate security measures, remain in detention at a cost of more than $10 million per detainee per year. And, although the parole-like Periodic Review Board (PRB) continues to operate, a growing list of overdue determinations suggests dysfunction and a lack of adherence to a controlling Executive Order.

At a surface level, these facts suggest that disbanding the State Department’s GTMO Closure Office was shortsighted and has yielded inefficiency. Deeper consideration, however, reveals that dismantling the GTMO Closure Office has already damaged—and will continue to damage—U.S. national security.  S/GC’s responsibilities for GTMO-related issues have been scattered, defaulting to regional bureaus and embassies unfamiliar with the issue set.  The government’s primary reservoir of expertise on GTMO detainee transfer frameworks has been dispersed, hobbling its ability to quickly respond to GTMO-related challenges. And, the loss of institutional memory associated with the office’s closure suggests that the U.S. government’s error is not easily recoverable.  Worse, it is difficult to escape the conclusion that these effects are the result of unthinking self-sabotage by political leaders who reflexively abjure the previous administration’s policies.

S/GC functioned as the U.S. government’s hub for GTMO policy

Al Darbi’s continued detention at GTMO is a clear example of the pitfalls of disbanding S/GC. Pursuant to a 2014 plea agreement before the GTMO military commissions, under which al Darbi agreed to, inter alia, testify against other GTMO detainees, he was supposed to be transferred to Saudi Arabia to complete his sentence by February 20, 2018. But the U.S. government has not held up its end of the bargain, so al Darbi remains at GTMO.  This failure is problematic on a number of levels.  It raises serious doubts about the U.S. government’s ability to keep its word (including to foreign partners) and undercuts the viability of military commissions plea agreement, dealing yet another blow to that troubled system.

According to public reporting, the government’s two-month delay in transferring al Darbi is due to unanswered questions about the transfer the Department of Defense posed to the Saudi government. For those who worked on GTMO detainee transfers, a transfer delay attributed to outstanding questions of a foreign partner government is as unsurprising as it is unnecessary. Whether DOD’s questions relate to specific security measures the Saudi government will impose on al Darbi or to treatment concerns — or even to the logistics of when, where, and how al Darbi will be delivered into Saudi custody – this would be information that S/GC would have previously been responsible for securing to DOD’s satisfaction.

From 2009 until 2017—with a brief hiatus in the spring of 2013—S/GC functioned as the focal point for the U.S. government’s policy on GTMO detainee transfers. In that time, three special envoys and a handful of staff developed unique expertise in negotiating security and reintegration frameworks for former GTMO detainees. S/GC worked to tailor these frameworks to the particular requirements of former detainees and the capabilities of receiving countries, within the narrow universe of foreign governments willing or able to repatriate or resettle former GTMO detainees. These negotiations were complicated, extraordinarily sensitive, and often conducted directly with heads of state, foreign ministers, defense ministers, interior ministers, and the chiefs of foreign security services. S/GC’s GTMO detainee transfer negotiations were multidisciplinary and wide-ranging; by turns they were highly political or extremely technical, implicating, for example, relations among sovereigns, the Refugee Convention, technical surveillance measures, humanitarian monitoring obligations, apartment floorplans, and airspace access fees.

As S/GC negotiated with foreign partners, it also spearheaded discussions about each transfer framework with other elements of the U.S. government, and regularly briefed members of Congress and their staff. Each GTMO detainee transfer was subject to approval by the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. In practice, this interagency process gave each of these agencies an effective veto over any particular transfer. The threat of such a veto in the face of the difficulty of concluding a GTMO detainee transfer framework with a foreign government, empowered S/GC’s interagency colleagues to impose a wide variety of demands or requirements before even soliciting their principal’s view on any given transfer. Of course, that was their job and they did it to great effect. And, subjecting each transfer framework to such significant scrutiny almost certainly improved the outcomes of GTMO detainee transfers. Nevertheless, as a result of this policy process, S/GC was often in the position of wielding the apparatus of U.S. diplomacy to seek answers to very particular questions that the United States, if asked, itself would bridle at, if not refuse to answer outright.

While S/GC worked primarily to transfer those detainees approved for transfer by the 2009-2010 Executive Order Task Force, or by the ongoing PRB, it also negotiated the transfer of detainees who were slated for transfer for other reasons, like transfer in satisfaction of a plea agreement or a court-ordered release. For example, in February 2011, Noor Uthman Mohammed pleaded guilty before the GTMO military commissions. As part of his plea agreement, he was sentenced to serve 34 months at GTMO prior to transfer to Sudan, his home country. Despite the paucity of detainee transfers in the preceding three years, S/GC ensured Mohammed’s comparatively timely transfer to Sudan in December 2013, consistent with his military commission pleas.

Transfers were not the end of the story

Importantly, S/GC did not wash its hands of former GTMO detainees once a transfer was implemented. Instead, S/GC functioned as a clearinghouse for information gathered on former GTMO detainees. S/GC closely and extensively tracked U.S. government intelligence and diplomatic reporting, in collaboration with its interagency partners, to attempt to keep tabs on the well-being of former detainees and to make sure U.S. security needs were satisfied. It also maintained contact as necessary with the lawyers for former detainees.

S/GC did not simply keep tabs on former detainees from afar. Rather, when a problem with a transfer arose, S/GC led U.S. government efforts to address it; or, when a foreign partner government fell short of its commitments, S/GC led U.S. diplomatic engagement to improve compliance. The relationships S/GC built in the course of negotiating detainee transfers positioned it uniquely in the schema of the U.S. government to address, frequently with foreign partners, the unusual challenges that emerged following detainee transfers.

One recent example highlights S/GC’s importance. In the last two weeks, public reporting has indicated that either one or both of the Libyan-national GTMO detainees transferred to Senegal in April 2016 were deported back to Libya, perhaps involuntarily. Certain public reporting suggests that the U.S. government was caught unaware that Senegal might deport these former GTMO detainees, suggesting U.S. government may not be paying sufficient attention to former GTMO detainees. And the deportation itself raises concerns relating to security—sending former GTMO detainees to a failed state—as well as humanitarian issues—forcibly repatriating an individual who has expressed fear of torture or mistreatment. Issues like these were anticipated and addressed by those who previously served in S/GC.

It should be clear from the Senegal situation why it is necessary for the U.S. government to maintain a single facility, with expert staff, responsible for GTMO detainee transfer-related matters. This case raises concerns that do not fit neatly within the existing boundaries of bureaucratic specialization inside the U.S. government. Geographically, it implicates both Senegal, which is within the purview of the Bureau of African Affairs, and Libya, which falls under the purview of the Bureau of Near Eastern Affairs. U.S. bilateral relations with both countries have been affected. It implicates national security and international law. Moreover, avoiding such a scenario requires members of the U.S. government—who often have very broad portfolios—to pay attention to a handful of low-profile, non-U.S. citizen individuals scattered around the world. Without S/GC, the State Department, in general, is simply not built to do that.

Although it is impossible to say with certainly that if S/GC were still functioning, last week’s debacle in Senegal could have been avoided, at the very least, the U.S. government most likely would not have been caught unaware. Moreover, unlike desk officers at the State Department or political officers at U.S. embassies, S/GC was able to engage high-level foreign and U.S. government representatives quickly and substantively, based on the rapport, relationships, and credibility developed over the last ten years. Such high-level engagement increased the likelihood of responding effectively and timely to an emerging or an emergent challenge with a former detainee or his transfer.

Stasis at GTMO is a recipe for failure

Finally, the stasis at GTMO increases the likelihood of camp disruptions and diplomatic recriminations. Either or both are likely to make very clear the deleterious effects of S/GC’s dissolution.

There have been no detainee transfers for 15 months, even though several transfers were reportedly on the cusp of implementation at the end of the Obama administration. Five men approved for transfer prior to President Trump’s inauguration remain at GTMO—two of these men have been approved for transfer since 2010 at least. The PRB continues to conduct parole-like hearings, but of the seven hearings conducted since January 20, 2018, three PRB determinations are well beyond their legal requirement for publication within 30 days—including one that is overdue by 14 months, suggesting dissension among PRB members or an extraordinary failure of interagency principals to convene a legally required PRB Review Committee.

Historically speaking, significant diplomatic friction or camp disruptions have accompanied long periods of policy stasis at GTMO. Former President George W. Bush acknowledged that by 2006, when he decided to close GTMO because the foreign policy and national security costs associated with the facility were simply too high. (President Bush would ultimately transfer 532 detainees from GTMO.) On the other hand, when President Barack Obama failed to transfer significant detainees over more than two years, and the Office of the Special Envoy for Guantanamo Closure’s responsibilities were temporarily shifted to the office of the Legal Adviser in January 2013, a massive hunger strike broke out at GTMO. At its peak, 64 percent of the detainee population participated in the hunger strike. But the number of participants dropped rapidly once a new State Department Special Envoy for Guantanamo Closure was named and detainee transfers restarted in August 2013. Such camp disruptions only become more likely should the population at GTMO increase.

The absence of S/GC will make it difficult to effectively respond to either type of crisis. Worse, because S/GC has been dissolved and its former staff have moved on to a variety of new positions, valuable institutional memory and substantive experience are lost.

Closing S/GC has weakened U.S. national security

Disbanding S/GC has increased the government’s difficulty in fulfilling its plea agreements, making it less likely that GTMO detainees will cooperate in the dysfunctional military commissions system. Disbanding S/GC has also increased the likelihood that challenges associated with previously implemented GTMO detainee transfers will go unaddressed, leading to increased opportunities for former GTMO detainees to engage in terrorist or insurgent activity should they choose. (One measure of S/GC’s success is the dramatic reduction in the so-called reengagement rate of former GTMO detainees transferred during the Obama administration as compared to the rate for those transferred in the Bush administration.) Finally, when disruptions at the camp do emerge or when the diplomatic costs of GTMO take hold for this administration, the absence of S/GC will exacerbate and prolong those challenges—and however the United States chooses to respond, its response will be carried out by GTMO detainee transfer neophytes.

None of this was necessary. The U.S. government, through the State Department’s GTMO Closure Office and with its interagency partners, invested a tremendous amount of time, energy, and resources in developing transfer frameworks designed to protect the American people while improving the international standing of the United States by releasing men who should no longer be detained. Disbanding the GTMO Closure Office has increased the likelihood of GTMO-related national security challenges and decreased the United States’ ability to respond to those challenges.

The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.

Image: Detainees jog inside a recreation yard at Camp 6 in the Guantanamo Bay detention center on March 30, 2010 in Guantanamo Bay, Cuba. Photo by John Moore/Getty Images

 

About the Author(s)

Benjamin R. Farley

Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization, previously Senior Adviser to the Special Envoy for Guantanamo Closure at the U.S. Department of State from 2013 – 2017 Follow him on Twitter (@br_farley).