Detention & Guantanamo

Notes on President Obama's Guantanamo Closure Plan

By Benjamin Wittes
Tuesday, February 23, 2016, 6:15 PM

President Obama's Guantanamo closure report begins with a false statement and proceeds make a series of valid points. It deserves more serious attention than it's likely to get, not because it breaks much new ground, but because the approach the President is laying out is quite reasonable whether or not one believes fervently—as the President does—that Guantanamo should close or believes—as I do—that the Guantanamo question per se is deeply unimportant. Only those with a particular philosophical or political commitment to Guantanamo, or to opposing Barack Obama, would balk at this point at what he's proposing.

But that's almost certainly enough to present this plan from seeing realization.

I haven't yet read much commentary on the document yet, so consider these my initial impressions, and accept my apologies if they are redundant of things other have said elsewhere.

Let's start with plan's opening: "As the President has made clear, closing the Guantanamo Bay detention facility is a national security imperative. Its continued operation weakens our national security by furthering the recruiting propaganda of violent extremists, hindering relations with key allies and partners, and draining Department of Defense resources."

With all due respect to the President, closing Guantanamo is not a national security imperative. The site's continued operation neither aids nor weakens our national security. And please read this this excellent piece before you fall for the line that Guantanamo plays big in enemy recruiting propaganda. Closing Guantanamo is, if we're being totally honest, something much less than an imperative of any kind. And it's not about national security. As Bobby wrote earlier today, the values argument for closing Guantanamo "is where the real action is." Put simply, closing Guantanamo is an objective, not an imperative, and it's more of a diplomatic and political objective than a national security one.

With that said, it is an entirely reasonable political and diplomatic objective, and the silly opening aside, the rest of the document is well worth considering seriously. 

A few thoughts:

First, the document makes clear that the much-ballyhooed possibility of Obama's closing Guantanamo by executive action is dead—if it was ever really alive. The document contains not a hint that Obama might defy the transfer restrictions and bring detainees to the United States on his own authority. The initial mention of bringing detainees to the U.S. is preceded by the phrase "should Congress lift the ban on transfers to the United States." The following paragraph describes, for long-term detainees, the administration's intention to "work with Congress to relocate them from Guantanamo Bay detention facility to an appropriate site in the continental United States while continuing to identify other appropriate and lawful dispositions." This is not the way you talk if you don't recognize the authority of the legislature to impose the restraint on you that it has, and it's not the way you talk if you mean to defy that legislature in the coming weeks or months either. The administration, in short, will live with the transfer restrictions.

And that means something: Guantanamo is not closing.

Second, the administration has announced in this document that it means to seek legislation on matters about which I had not realized it was planning to go to Congress:

the Administration is considering seeking changes to the MCA to improve the efficacy, efficiency, and fiscal accountability of the commission process fully in alignment with the interests of justice and consistent with our American values of fairness in judicial processes. Some of these changes are relatively simple. For example, changes that would provide flexibility in conducting certain proceedings may ease the burden on the parties and facilitate better management of the process. Additionally, the Administration is also considering whether there are other legislative changes outside the context of the MCA that might enable detainees who are interested in pleading guilty in Article III courts, and serving prison sentences according to our criminal laws, to do so. We look forward to working with Congress on these proposals.

I'm not sure what sort of legislation the administration is referring to here, and this is the first I've heard of plans to go to Congress with requests for changes in the the substantive law of detention or prosecution of Guantanamo detainees. I am far more interested in the question of what rule changes the administration proposes than I am in the question of whether those rules get carried out on a military base in Cuba or in military facility in the United States. Too often, we debate the venue for our policy—Guantanamo or notinstead of the substantive content of our policy. It's very backwards. For people actually interested in the fate of Guantanamo detainees, rather than the fate of an abstraction called "Guantanamo," this is probably the most important paragraph in the administration's report. It'll be interesting to see whether it gets any attention at all and what the proposals will amount to.

Third, the administration continues to refuse to name a specific site in the United States to which to move detainees. It is probably right not to do so. Given that the law forbids any "amounts authorized to be appropriated or otherwise made available for the Department of Defense [to] be used . . . to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment," naming a particular facility as the future home of the Guantanamo detainees will only raise legal questions about whether or not it's now unlawful to spend money maintaining that facility. The administration, however, does lay out usefully the criteria it's using for determining facility suitability:

Based on past reviews and a 2015 survey of potential detention locations in the United States, the Department of Defense determined that, with modifications, a variety of Department of Defense, Bureau of Prisons, and state prison facilities could safely, securely, and humanely house Guantanamo detainees for the purpose of military commissions and continued law of war detention. For this plan, the Department of Defense identified 13 potential facilities for the purpose of building a cost estimate. This sample allowed the Department of Defense to assess Federal, Department of Defense, and state correctional facilities. As part of the assessment process, the Department of Defense examined ways to split the detainee population between sites, but concluded that a single detention center was the most efficient course of action. Additionally, the Department of Defense considered changes to achieve savings in operating (recurring) costs and facility requirements and modifications. Finally, the Department of Defense developed notional cost estimates for building a new detention center at an existing Department of Defense location.

The Department of Defense examined time needed for modifications; disruption to the existing mission at the site; access to troop housing and support; distance to a military airfield and military medical facilities; and force protection and anti-terrorism requirements. Any location would require modifications to meet the legal and policy standards for secure and humane treatment of detainees, at varying levels of cost. All sites would require significant security upgrades to cells, construction of or upgrades to medical facilities, additional surveillance equipment, and sensitive compartmented information facilities for classified work. All sites would also require the added construction or modification of buildings to create office spaces and a secure courtroom for military commissions.

Fourth, the administration's cost arguments are entirely persuasive and entirely beside the point. Yes, it would cost less to not have Guantanamo; and yes, maintaining this detention facility for the imagined 30 to 60 detainees is kind of silly. But just as this is really about symbolism for Obama, it is also about symbolsm for Guantanamo's enthusiasts. To someone who really believes that closing Guantanamo represents an abandonment of the war paradigm in counterterrorism—and there are many such people—think how aridly this paragraph will read:

The Fiscal Year 2015 cost to operate the Guantanamo Bay detention mission was approximately $445 million. In addition to annual operating costs, maintaining this mission in the future would require approximately $200 million in military construction that has been deferred in recent years, and $25 million for related furnishings. Based on site surveys and an in-depth review of every major cost center associated with detention operations, the Administration assesses that executing this plan, including the transfers described above, and then shifting to the operation of a U.S.-based detention facility for 30 to 60 detainees, would lower costs by between $140 million and $180 million annually, as compared to FY 2015 Guantanamo operations costs. The exact cost reductions would depend on whether the detention facility was relocated to an existing U.S. military facility or to a non-Department of Defense location that may not have preexisting support infrastructure or security. 

Probably about as aridly as it will read to someone, like Obama, whose actual motivation for closure is this: "keeping this facility open is contrary to our values.  It undermines our standing in the world.  It is viewed as a stain on our broader record of upholding the highest standards of rule of law.  As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law.  But 15 years after 9/11—15 years after the worst terrorist attack in American history—we’re still having to defend the existence of a facility and a process where not a single verdict has been reached in those attacks—not a single one."

The cost arguments move only soulless reptilespeople like me, that is.

Finally, there's a very important little phrase in the middle of page 8 of the document, wedged within the discussion of cost savings: Guantanamo closure will, the administration says, "generate at least $335 million in net savings over 10 years and up to $1.7 billion in net savings over 20 years."

Twenty years? This is a very clear admission by the Obama administration that the AUMF war, in one form or another, is not going away. We are not reaching the end of the conflict, notwithstanding the President's famous May 2013 speech. The very administration that wants to close Guantanamo and that admonishes us that "This war, like all wars, must end," is planning detention operations on a 20 year horizon. Remember that.

Six months before Obama's election I gave the following testimony to the Senate Judiciary Committee, stating flatly that there existed a core of unprosecutable detainees, who could not be transferred without undermining crucial security interests:

Nobody outside of the executive branch knows exactly how many current detainees are too dangerous to release yet could not face criminal charges in federal court—because they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion. Without access to a great deal of material that remains classified, one can only guess how many such detainees there are. But the number is almost certainly not trivial. Even under the somewhat relaxed rules of the Military Commissions Act (MCA), military prosecutors have estimated that they might under ideal circumstances be able to bring to trial only as many as 80 detainees. Excluding those current detainees already cleared for transfer from Guantanamo, that still leaves roughly 100 whom the military deems too dangerous to transfer yet against whom charges are not plausible. Even if we assume the military is being hopelessly conservative in clearing detainees for repatriation, there is almost certainly still a gap. That gap involves dangerous men who want to kill Americans. (emphasis added)

There are today, almost eight years after I floated 100 as the number of detainees not amenable to either trial or transfer, 91 people left at Guantanamo. And the administration is planning on the basis of the long-term detention of between 30 and 60 of them and making financial savings estimates over a span of two decades.

To my conservative friends, I have an observation: It makes no sense to plant the flag on carrying out this exercise at Guantanamo Bay—as opposed to all other facilities available to the administration—as some kind of badge of toughness in counterterrorism. It's not the optimal facility any more. 

To my liberal friends, I also have an observation: As long as you equate closing Guantanamo with abandonment of the wartime authorities, you both encourage the opposition of conservatives committed to those authorities and you delude yourself—in a fashion in which the administration is no longer deludedabout what Guantanamo closure really means.

For those who are looking to find the overlap in the Venn diagrams here, I commend readers to a Washington Post oped Steve Vladeck and I wrote last month, which still represents my best sense of what a compromise might look like:

Obama has refused to send new detainees to Guantanamo, and because the United States has no other facility that can be used for such long-term detention, closing Guantanamo would mean that the United States would effectively make future detention impossible. Meanwhile, many Republicans in Congress won’t agree to relax the transfer restrictions without some commitment to forward-looking detention authority. Since many Democrats equate “closing Guantanamo” with ending military detention, they won’t agree to a deal that allows the former without accomplishing the latter. With “closing Guantanamo” meaning such different things to these different constituencies, compromise has proved impossible.

We, too, differ on the need for (and wisdom of) future detention authority. But we agree that there is a formula for closing Guantanamo without settling the question one way or the other — and, thus, a way for bipartisan majorities in both houses of Congress to pass a bill that would cut Guantanamo’s Gordian knot. The compromise we envision has five relatively straightforward components:

  • First, it would authorize the executive branch to transfer all remaining detainees to a specific civilian or military federal prison facility within the United States, with a ban on release from that facility except (1) pursuant to a judicial order or (2) for the purpose of transferring them to the custody of a U.S. court or a foreign sovereign.
  • Second, it would provide that any person convicted by a military commission would serve his sentence at the same facility.
  • Third, regardless of where the facility were located, the bill would provide that the U.S. District Court for the District of Columbia would continue to exercise jurisdiction over all civil actions, including habeas petitions, filed by detainees transferred to that facility from Guantanamo.
  • Fourth, the bill would provide that it had no effect whatsoever on substantive law, including the legal authority to subject terrorism suspects to military detention under other statutes, such as the September 2001 Authorization for the Use of Military Force and the fiscal 2012 National Defense Authorization Act.
  • Fifth, it would declare that this same facility would be the permanent site for any future detentions under those statutes.

Candidly, I think it's a better plan than the one Obama put forward today, but I see no reason for anyone to oppose Obama's plan either.