Raha Wala of Human Rights First has written in with an in-depth response, printed below in full, to my post the other day expressing disappointment in Senators Durbin and Feinstein’s op-ed on closing Guantanamo. I had argued there that Durbin and Feinstein weren’t even acknowledging — put aside answering — some of the toughest questions involved in such an effort. There is much I agree with in Raha’s response, and I commend to readers Human Rights First’s paper and its president Elisa Massimino’s recent Senate testimony laying out a detailed proposal for closing Guantanamo. Links to those documents are included in Raha’s response below.
A preliminary note: Raha states below that I assume “that all detainees at Guantanamo were, are, and will remain dangerous.” Not at all – I don’t believe that to be true. But I do believe that many of those who remain are dangerous (to varying degrees). Based on government assessments by both the Bush administration and Obama administration, as well as my own experience inside the government working on these issues, I also believe that some of those detainees will not be prosecutable or subject to detention or other strong security measures by foreign governments. I respect those who argue that we should close Guantanamo anyway either because some principles demand it or because expected national interest benefits outweigh the risks (I believe that any chance of closing Guantanamo in the foreseeable future lies in a bipartisan political coalition behind the latter argument). But I don’t put much stock in any proposal that fails to acknowledge those and other tough realities.
Here’s Raha’s response:
I want to briefly respond to Matt’s central critique of Senator and Feinstein and Durbin’s op-ed on closing Guantanamo: that their offered plan for closing the detention center “doesn’t address the toughest Guantanamo questions.” There’s certainly some merit to that criticism. While the reality is that some detainees may face detention post-transfer if Guantanamo is going to be closed, David Remes is right in saying that Guantanamo cannot—and should not—be closed by simply moving all the detainees to the United States, or to foreign countries, for continued detention without charge or trial (especially not if the detainees face worse conditions of confinement in supermax-like facilities, which may undermine compliance with Geneva Conventions requirements, and would be inconsistent with current DoD policy and practice).
That said, I suspect that what Senator Feinstein and Durbin have in mind is a plan more sophisticated than what they’ve laid out in their necessarily short and pithy op-ed, and, in any event, I applaud them for bringing attention to the issue when few in Congress have been willing to take seriously the effort to close Guantanamo.
While we’re talking about addressing the toughest Guantanamo questions, I want to direct folks to recent policy paper that we at Human Rights First published to articulate what we see as a reasonable strategy for closing Guantanamo by the end of President Obama’s second-term in office. (Elisa Massimino, our President and CEO, also testified to some elements of this strategy at a recent hearing on Guantanamo in the Senate Judiciary Subcommitee on the Constitution, Civil Rights, and Human Rights.)
In this post I’ll briefly outline some short responses—the longer, more detailed versions are in the Human Rights First policy paper—to the hard problems Matt raised in his post, but before I do, I want say a few words about the “plan-doesn’t-address-the-toughest-problems” critique, which I’ve heard a lot in discussions on how to move forward to close Guantanamo.
Although it’s perfectly reasonable to expect that any viable plan should address the toughest and most complex aspects of a problem, there is a danger in getting bogged down in them, which can prevent progress in other areas where there may be consensus, or at least a relatively clear path forward as a matter of law and policy. Let me provide some examples:
Transfer of some number of cleared detainees. Though the Obama administration has announced the impending transfer of two Algerian detainees, there have been, to-date, zero transfers of detainees out of Guantanamo under the congressional transfer restrictions (there have been some transfers pursuant to court orders, which exempt the administration from having to meet the transfer certification requirements). This is despite a national security waiver provided by Congress that has—in our view and that of many in Congress on both sides of the aisle—provided the administration since the beginning of 2012 with significant discretion under the law to transfer out of Guantanamo, consistent with the spirit and letter of the law, a substantial number of the 86 detainees that have unanimously been cleared for transfer in some way, shape, or form by security, law enforcement, and intelligence agencies that made up the Guantanamo Detainee Review Task Force. There should still be a robust debate over whether the transfer restrictions are necessary (our view and that of most national security experts: they aren’t), but the administration can and should in most cases use the national security waiver and read whatever security arrangements it makes with foreign governments as satisfying the remaining certification requirements that cannot be waived. (See Annex B of the Human Rights First policy paper for some thoughts on the flexibility inherent in the Guantanamo transfer restrictions.)
Prosecution of some number of detainees in civilian courts. This is currently barred by congressional restrictions, but the SASC version of the FY 2014 leaves open the possibility of revisiting this. Jurisdictional and other considerations may limit the number of detainees that remain prosecutable in civilian courts, but due to the D.C. Circuit’s rulings in al Bahlul and Hamdan II material support and conspiracy—two of the most common charges in terrorism-related cases—are no longer available in military commissions (at least for pre-2006 conduct). Everyone—whether pro-or anti-military commission—who supports bringing those involved in terrorism to justice should support transfer to civilian courts of chargeable detainees who can’t be tried in military commissions.
Timely, thorough completion of periodic reviews of detainees. Nearly every informed observer of detainee policy—including those that support Guantanamo and a robust law of war detention policy—agrees that detainees should be provided meaningful, ongoing reviews to make determinations regarding whether detainees should continue to be held. However, the periodic review hearings for Guantanamo detainees who are neither charged nor cleared for transfer —which are mandated by executive order and codified by Congress—were supposed to have been completed by March of 2012, over 17 months ago. Though DoD has announced that some reviews will begin soon, none have been completed yet, and there is no stated timeline for completion, or clear understanding of whether the procedures in place will allow for a meaningful review.
Leadership from the President and his national security team. Any viable plan has to include persistent, high-level leadership from senior staff at the White House, and direct, personal engagement from the President. Instead, we’ve seen public reports of unresolved inter-agency disagreements on Guantanamo policy, and deteriorating relations with key members and staff on the Hill. In his speech at the National Defense University, the President announced that he was appointing senior officials in the State and Defense Departments to move the ball forward on closing Guantanamo. These steps, while welcomed and important, won’t solve interagency disputes or fix congressional relations. If the President is serious about closing Guantanamo, there needs to be a senior White House point person that’s on the hook for it, and Guantanamo needs to be a regular agenda item in meetings with key national security staff. I want to be clear: Congress deserves the brunt of the blame for the policy failures on Guantanamo, but it shouldn’t have taken a mass hunger strike for the President and his team to reinvigorate efforts on Guantanamo, and the President and his team can’t let Guantanamo slide to the bottom of an admittedly impressive national security policy agenda when the issue stops hitting the front page of the New York Times.
These elements alone do not constitute a comprehensive Guantanamo closure plan, but they should help lawfully reduce the population by a significant number, and provide incentives, for those who otherwise feel that solving Guantanamo is impossible, to think through some of the harder issues that Matt and others have identified.
So how about those tough issues Matt identified?
No one is under the illusion that there is going to be a mass transfer of detainees to Yemen in the near term. However, transfers can happen on a case-by-case basis where the government determines that the threat posed by particular detainees is not likely to be amplified by instability in Yemen or potential terrorist plots, such as the ones that prompted the embassy closing. Efforts to establish a lawful rehabilitation program must be expedited with the goal of allowing transfers of Yemenis en bloc at an appropriate time.
For transfers of Guantanamo detainees to be regularized, the administration needs to forcefully push back against the assumption that Matt and others have proceeded under: that all detainees at Guantanamo were, are, and will remain dangerous. A key element of this is rejecting the “28%-of-former-Gitmo-detainees-have-returned-to-the-fight” claim, which seems to have become conventional wisdom in discussions of Guantanamo policy. The claim is purportedly based on DNI data, which the New America Foundation has found to be inaccurate based on an independent assessment. (See Annex C of the Human Rights First policy paper for some recommendations on how to reform the process for evaluating transfer risk.)
But even if you accept the DNI’s data, almost half of that 28% are individuals who supposedly “returned to the fight” are merely suspected of involvement in derogatory actions, based on unverified or single-source reports. DoD spokespersons have said that these individuals may not have taken any actions that would threaten the security of the United States. Moreover, past engagement rates are not necessarily predictive of future risk, as the Obama administration began implementing new, more thorough transfer review procedures in 2009. The DNI data shows a much lower percentage (4.2%) of confirmed engagement for detainees transferred beginning in 2009, when President Obama took office and his team revisited the intelligence on and transfer protocols for Guantanamo detainees.
None of this means that there is no risk associated with transfers, and certainly some detainees that have been transferred have engaged in dangerous criminal acts post-transfer. The bigger, more important effort that the President’s national security team needs to take on is persuading Congress and the American people that risk can be managed, not eliminated—that demanding the latter is not wise or realistic, and that the costs of maintaining Guantanamo outweigh any risks associated with transfers. In most cases, detainees who are transferred will be subjected to U.S. and foreign intelligence and law enforcement operations if they engage in criminal acts. In the very rare circumstances in which a former detainee is involved in an imminent and dangerous plot against the United States that can’t be handled any other way, the United States retains the authority to take action, including by resorting to the lawful use of lethal force.
While recent transfers out of Guantanamo have been rare, transfers of wartime detainees held in theatre is routine, and seen as an essential component of any legitimate detention operation in service of a broader counterterrorism or counterinsurgency mission. Moreover, those who support keeping Guantanamo open should understand that no administration—Republican or Democrat, pro-GTMO or anti-GTMO—will rely on Guantanamo for future detention operations if it believes it will not have the option of transferring out detainees in appropriate circumstances.
There will no doubt be some detainees that the administration will not transfer in the near term. These detainees will remain at Guantanamo, or be held stateside, until the end of the hostilities. But here’s the thing: nearly everyone—Republican or Democrat, pro-GTMO or anti-GTMO—agrees that these detainees must be released at the end of hostilities. The disagreement, then, is regarding when, or under what circumstances, hostilities end. The end of major combat operations in Afghanistan provides a compelling breaking point to begin winding down the government’s claimed war authorities vis-à-vis core al Qaeda and associated forces, even if there will be persistent threats from other terrorist groups with respect to which even the government would concede the Guantanamo detainee population has little, if any, connection. Certainly at that point there will be litigation regarding whether there remains authority under the AUMF to continue to hold detainees. It would be wise for Congress and the administration to begin considering a transfer plan for that final tranche of detainees, or courts may force a plan on the political branches.
Again, we don’t claim to have the silver bullet to closing Guantanamo. If there was one, the administration would have used it by now, given the President’s stated commitment on this issue. But by getting the ball rolling and beginning the process of formulating solutions to the toughest, most complex problems, there is a viable path forward to Close Guantanamo by the end of President Obama’s second-term.