Transfers, Releases & Resettlements

Sens. Durbin and Feinstein Don't Address the Toughest Guantanamo Questions

By Matthew Waxman
Thursday, August 15, 2013, 10:59 AM

Like David Remes, but with different assumptions and for different reasons, I was disappointed with Senators Durbin and Feinstein’s op-ed purporting to offer a plan for closing Guantanamo.  As I’ve argued here recently, proposals of this sort – transferring many detainees to foreign countries and moving the rest into the United States for trial or continued detention under the laws of war – could be a productive step, but it kicks down the road some of the toughest questions and doesn’t answer some of Durbin and Feinstein’s own concerns.

Let’s take Remes’ suggestion and assume explicitly, as Durbin and Feinstein do implicitly, that most of the remaining Guantanamo detainees are dangerous (and note that the fact that a review board has recommended that they be transferred does not mean the board assessed otherwise, but that it assessed that such dangers are manageable or could be mitigated through effective transfer conditions).  Durbin and Feinstein propose:

Congress and the administration should expedite efforts to transfer the 86 detainees already cleared for transfer. This includes 30 non-Yemeni prisoners and 56 Yemenis. The president should exercise his authority to transfer the non-Yemeni detainees to other countries, where they could remain in custody. The 56 Yemenis could be sent to Yemen or Saudi Arabia, where those governments could hold them so they do not attack the U.S. or our allies.

Of course, those 86 detainees could be held by governments to which they were transferred.  But that just assumes away the likely dilemma that many of them would not be (based on experience to date in trying to negotiate transfer agreements and the practices or capacities of these governments).  Are Durbin and Feinstein calling to transfer them anyway?  That would be a reasonable position, given their argument that keeping Guantanamo open is terrible for U.S. foreign policy and national security: “Guantanamo has devastated our reputation as a champion of human rights, weakened our international partnerships and remains a powerful recruiting tool for terrorists.”  They may reasonably assess that the risks posed by these individuals are outweighed by other concerns.  If so, then they should step up and say so.  Their Senate leadership positions on national security issues place them well to do so.  Simply assuming away this choice by imagining that anyone whom the U.S. government assesses to be very dangerous will remain detained or otherwise incapacitated is not a serious way to make policy.

Remes also appropriately asks the question how Durbin and Feinstein believe that it is “an abomination” to hold detainees without trial on an island, but not an abomination to do so inside the United States “under international law until the end of hostilities” (which is the same legal status under which they're held now).  I think law of war detention in the armed conflict with al Qaida is legitimate, and one can take that position and still believe that Guantanamo should be closed.  Durbin and Feinstein don’t take a stand here, though, on whether those hostilities are likely to remain ongoing, and if so they don’t answer why their proposal doesn’t simply move what they term an abomination onshore.

Even Durbin and Feinstein’s discussion of how Guantanamo operates assumes away dilemmas.  They say that “force-feeding violates international norms and medical ethics.”  Is it their expectation that moving detainees into the United States, or even convicting them through trials, will end hunger strikes?  And if detainees do hunger strike inside the United States, is it their position that the U.S. government should keep its hands off and let them die?  Maybe that’s the right thing to do, but if they think the answer to how to deal with hunger strikes is so clear they should say so rather than imaging the problem disappears under their proposal.

I don’t agree with it, but there’s a serious case to be made that Guantanamo should be closed on account of legal or ethical absolutes.  There’s also a serious case to be made – one that I’m more sympathetic to – that Guantanamo should be closed on account of pragmatic weighing of costs and benefits.  But this op-ed seems to embrace absolutes without acknowledging the consequences, and the government doesn’t get to do that.