The Status of Guantanamo 17 Years In

Seventeen years ago today, the United States brought twenty Afghan men, alleged to be members of the Taliban or al-Qaeda, to its Naval Base at Guantanamo Bay, Cuba. Images of the men shackled on their knees wearing orange jumpsuits quickly spread around the globe as the men were forced into outdoor cells with concrete floors at Camp X-Ray. In the years that followed, hundreds more came and went. Ask any American on the street about Guantanamo and they likely have no idea that the United States is still holding people there. Yet now, almost two decades after the prison opened, forty men still remain at a cost of more than 10 million dollars per detainee per year, and the Trump administration is reportedly considering reopening the prison to new detainees—this time alleged members of ISIS, despite a lack of clear congressional authorization.

Not long ago, it was a policy truism amongst Democrats and Republicans alike that the detention facility should close. Presidents Bush and Obama agreed that the very existence of Guantanamo, which had become a symbol of America’s post-9/11 wartime abuses, was a boon to U.S. adversaries. President Bush noted that the facility was not only “a propaganda tool for our enemies,” but also “a distraction for our allies.” Terrorist groups have included in recruiting materials photos of detainees in those infamous orange jumpsuits, and Guantanamo continues to conjure images of torture, secrecy, and attempts to evade the rule of law. Some early arrivals were transferred to Guantanamo from CIA Black Sites, where they had been tortured, sometimes for months. Former Secretary of State Colin Powell said in 2007, “Guantanamo has become a major, major problem […] in the way the world perceives America, and if it were up to me I would close Guantanamo not tomorrow but this afternoon.” Powell knew that Guantanamo had “shaken the belief the world had in America’s justice system.” “We don’t need it,” he said, “and it is causing us far more damage than any good we get for it.”

It was in the wake of this bipartisan national security consensus that ten years ago Obama signed an executive order ordering the camp’s closure, and his administration continued the Bush Administration’s work of conducting inter-agency reviews of the evidence against detainees, releasing those whose detention was no longer justified. Bush reduced the population by over 500, and Obama transferred, repatriated, or released almost 200 more. By the start of the Trump Administration, 41 detainees remained where 780 were once held.

But somewhere along the way, politics got in the way of sound national security policy. In his 2018 State of the Union address, President Trump announced that he had signed an executive order to keep the detention facility open. Since then, the administration has been considering bringing new detainees to the facility for the first time in nearly a decade. Major General Michael Lehnert, the first commanding officer of the prison at Guantanamo Bay, said in response to Trump’s executive order: “There is substantial evidence that Guantanamo does not provide any useful options to deter our adversaries. In fact, its continued existence provides a recruiting tool and a rallying cry for our enemies. Guantanamo, therefore, is contrary to our national interests.”

In addition to harming U.S. national security by gifting terrorists a powerful recruitment and propaganda tool, sending individuals suspected of involvement in terrorist activity to Guantanamo makes it far more difficult to prosecute them. Senseless statutory bars to transferring detainees from Guantanamo to the United States for any reason, including for much-needed medical treatment or for prosecution in U.S. federal courts, remain in place, as do restrictions that make it more difficult to transfer such individuals to partner nations for prosecution. Once a suspect is sent to Guantanamo, the individual can only be prosecuted in the complete disaster that is the Guantanamo military commission system, which has been mired in controversy and delay with no end in sight. By contrast, prosecutors have won over 600 terrorism-related convictions in federal court since 9/11. Sending individuals to Guantanamo only serves to tie the executive branch’s hands, making it more difficult to use all available tools to incapacitate dangerous terrorists.

Just as troubling, the Periodic Review Board, the inter-agency board responsible for assessing whether individuals still being detained can be transferred or released without posing a significant threat to the national security of the United States has stalled, harming the credibility and moral authority of the United States. Benjamin Farley, former senior advisor to the State Department special envoy for Guantanamo closure, has called the PRB’s “broken” and “disabled from approving detainee transfers—likely because the consensus views of senior national-security civil servants are being overruled by political appointees.” It has, Farley notes, become a “one-way ratchet” for justifying continued detention.

In addition, the administration closed the State Department office where Farley served, the office that was responsible for transferring approved detainees out of Guantanamo. Five men who were cleared for transfer prior to Trump’s inauguration—some of them cleared years before—continue to languish at the detention facility, without the requisite institutional infrastructure or political will to release them, despite inter-agency agreement by national security professionals that they need not be detained.

Such failures harm U.S. national security and diplomatic relations by deterring U.S. allies from sharing intelligence or transferring detainees to U.S. custody.National security experts from across the political spectrum have emphasized that such cooperation from U.S. allies is essential to the success of U.S. and coalition counter-terrorism operations.

It is against this backdrop that Trump Administration officials are reportedly weighing what to do with suspected ISIS fighters who are currently being held by U.S.-backed Syrian Democratic Forces (SDF), who operate facilities in Syria where over 800 ISIS fighters are currently detained. Trump’s announcement of plans to withdraw troops from Syria reportedly sent waves of panic through the ranks of the SDF. If U.S. forces leave Syria without a plan for these ISIS detainees and their families, the SDF says it worries that it may have to abandon the detention facilities to fight off an imminent Turkish onslaught. But, as former national security officials Tess Bridgeman, Josh Geltzer, and Luke Hartig have explained, sending any of these individuals to Guantanamo is not the solution. Doing so would not only perpetuate all of the harms to U.S. national security and standing in the world that Guantanamo has caused over the past 17 years, but would also raise a host of new and thorny legal issues given the lack of clear congressional authorization for using force against ISIS. Notably, the family members of Americans killed by ISIS are also urging the administration to prosecute their children’s killers in federal court rather than sending them to Guantanamo and making them into martyrs.

Instead of heading down a road that is already a proven dead end, the Trump administration should urge other nations to take custody of their own nationals that have joined ISIS and prosecute those with ties to the U.S. in federal court. In addition, the administration should rebuild the interagency infrastructure that once successfully transferred hundreds of detainees to their nations of origin or to third countries. These steps would not only move the nation closer to ending the morass at Guantanamo that has gone on 17 years too long, but towards strengthening U.S. national security as well.

Image: A military officer walks from the entrance to Camp VI at the U.S. Military detention facility at Guantanamo Bay, Cuba. (Photo by Joe Raedle/Getty Images)

 

About the Author(s)

Rita Siemion

International Legal Counsel at Human Rights First. Member of the editorial board of Just Security. Follow her on Twitter (@ritasiemion).

Patricia Stottlemyer

Rule of Law and Human Rights Fellow at Human Rights First Follow her on Twitter @p_stottlemyer.