Guantanamo: Legislation

How Not to Close Guantanamo: Bring It Here

By Gabor Rona
Thursday, February 5, 2015, 9:46 AM

Ben asks “What Would it Take to Close Guantanamo?” and he provides a thoughtful response weighted toward the political landscape. But there’s another not-so-merely-philosophical question that underlies his question: what does it mean to “close Guantanamo?”

For purposes of rapprochement with Cuba it may have to mean U.S. out of Guantanamo altogether. That’s not going to happen anytime soon, since our interests in the place stem well beyond detaining suspected terrorists to monitoring and interdiction of Caribbean drug traffic and population flows.

But even ending detention at Guantanamo doesn’t necessarily mean ending Guantanamo detention. Ben refers to the realistic possibility that the price of ending detention at Guantanamo would be to bring some number of detainees to U.S. detention facilities for indefinite imprisonment. In other words, perhaps for life, without charge or trial. Since we are a rule-of-law loving people, that result would have to be shoehorned into some semblance of legal regularity. This could happen in one of two ways. Either through convincing ourselves that henceforth, we will forever be in a state of war, or, with the passage of new laws that permit such detention despite the absence of war. Either way, we risk trashing some very basic understandings of our constitutional order, not to mention explicit international human rights law obligations. That’s how not to close Guantanamo.

Imagine there never was a Guantanamo---that the Bush administration never sent hundreds of people to a place it hoped, erroneously, would be beyond the reach of law. What if it had instead brought them to Leavenworth for “enhanced interrogation,” indefinite detention without charge or trial, or trials that violate the very essence of due process? Would we now say that both the legacy of abuse and continued injustice could be cured by merely moving the detainees to Alcatraz? If not, then why do some advocates for an end to Guantanamo endorse bringing detainees to U.S. soil as the price of closing down the infamous detention center? Perhaps the courts will be more inclined to respect the detainees’ constitutional and human rights if they are on U.S. soil, the argument goes. In fact, that’s likely the elevation of hope over experience by human rights advocates who have devoted over a decade of their work-lives to a worthy, but most elusive cause.

The U.S. Supreme Court has already recognized the detainees’ right to challenge their detention in court (habeas corpus), but has indicated no appetite for reviewing lower court decisions that have eviscerated that right by refusing to require the government to provide convincing evidence or to enable detainees to see and effectively challenge the government’s evidence. If the detainees are moved stateside, the same courts will likely continue to apply the same standards.

It’s been argued that the end of combat operations in Afghanistan will weaken, if not eliminate, the government’s claimed detention authority under the laws of war. First, not likely. Courts have been uniformly deferential to the administration’s claim that we’re at war not merely against the Taliban in Afghanistan, but also, against Al Qaeda and its conveniently unidentified “associated forces” (a concept unknown to the laws of war) anywhere and everywhere in the world. Second, even if the law-of-war rationale for detention does fade, the locus of detention will not likely effect whether and how the courts respond. Third, even if courts are inclined to be less deferential to law-of-war detention on U.S. soil than at Guantanamo, that doesn’t mean they will be inclined to end detention without trial or charge and trial by discredited, dysfunctional military commissions. And that’s where things can get really ugly through judicial and/or legislative action - where these practices could migrate from the relatively cabined realm of war, into our domestic legal system more generally, whether in response to terrorism or any other threat, real or perceived. 

Congress, ironically, agrees that Guantanamo detainees should not be brought to the mainland. Ben notes that existing law prohibits it. Congressional sentiment against transfer of Guantanamo detainees to U.S. soil is likely to grow, rather than diminish with a Republican majority in both houses. The administration has consistently threatened to veto that annual legislation, and the President has just as consistently blinked each time it landed on his desk.

What then, are the scenarios that would bring Guantanamo detainees to the mainland? The President could simply defy Congress. But an administration that doesn’t see fit to veto legislation that it believes impinges upon its constitutional role is not likely to court a constitutional crisis over Guantanamo, an issue that people either don’t care much about, or if they do care, are more inclined to oppose transfer of detainees than to support it. And did I mention that there’s a presidential election on the horizon?

Perhaps the president and Congress could cut a deal. That unlikely scenario would likely take one of two shapes. One, it could simply re-create Guantanamo on U.S. soil by conceding continued law-of-war detention. Congressional endorsement of endless law-of-war detention would weigh heavily on future court decisions since the courts are much less likely to find constitutional violations where the executive and legislative branches are in accord than where Congress is silent. On the other hand, Congress and the administration could agree to new legal rationales for detention without trial and for trial by military commission, even in the absence of war. In a less fear-driven America, that should ultimately be held unconstitutional despite the support of the Executive and Congress. In today’s America, the Supreme Court’s verdict is anybody’s guess. Is the benefit of moving detainees to a new zip code worth the risk of ensconcing Guantanamo’s injustices into general U.S. law? The question answers itself.

So where does that leave us? To a great extent, President Obama has no one to blame but himself. He has declined to stare down a Congress that is cravenly willing to sacrifice both national security and civil liberties in favor of the fear card. He allows his Justice Department to make specious and conclusory claims about detainees in court, knowing that judges will apply a degree of deference that would never pass muster in connection with anything but claims of terrorism. He stubbornly continues to operate military commissions that can’t try their way out of a paper bag because they are not, in fact, courts. In both judicial and administrative settings, in congressional hearings and in the media, he has permitted his national security establishment to exaggerate the risks of releasing detainees who have never been charged or tried for any crimes. The official figures of released detainees who have “returned to the fight” include those who are merely suspected, as well as those who are determined, to have done so. This also ignores the fact that you can't "return to the fight" if you were never in it to begin with. Even if the numbers were correct, exclusive focus on them ignores the well-settled fact that Guantanamo is an awesome recruitment tool for terrorist groups.

Meanwhile, President Obama is no doubt sincere in his desire to close Guantanamo, not merely because of the legacy of lawlessness and detainee abuse it represents, but presumably also because of the violations of American values and international law that it continues to churn out day after grinding day. As concerns torture, the president famously said we need to look forward, not backward. He also said that “this war, like all wars, must end.” If he feels the same about Guantanamo, he needs to either release all detainees or try them in our time-tested federal courts, which, by the way, have convicted the overwhelming majority of defendants in hundreds of cases involving international terrorism post-9/11 and have consistently administered swift and severe punishment to them. Anything else would merely cement and expand an ugly past into the future while doing nothing to “keep us safe.”

Gabor Rona is Visiting Professor of Law at Cardozo Law School. Previously, he served as International Legal Director for Human Rights First, and as a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva.