After years of fading public interest in Guantanamo Bay and its prisoners, recent events have refocused our attention on the situation the United States has created there. More than 100 Guantanamo detainees are engaging in life-threatening hunger strikes, widely acknowledged to be the result of despair over their uncertain fates. In the months since the hunger strike was made public, politicians, non-governmental organizations, clergy, lawyers and military officers have called for the closure of Guantanamo now.
Of the 166 men still held at the island prison, 86 long ago were cleared for release by an inter-agency task force convened by President Barack Obama. Recently, the United Nations High Commissioner for Human Rights called for closing down Guantanamo, calling it a "clear breach of international law." The High Commissioner called for the immediate release of every detainee who has been cleared, and said that if the remaining detainees are charged they should be tried in a civilian court and not by the controversial military commissions first established by President George W. Bush.
When asked about the hunger strike at a recent press conference, President Obama renewed his commitment to closing Guantanamo, calling it unnecessary to keep America safe while at the same time diminishing the standing of the U.S. in the international community. Guantanamo, he said, is expensive, serves as a recruitment tool for extremists and hampers cooperation with allies on counter-terrorism efforts.
So why is Guantanamo still open? Its continued existence is due to a confluence of congressional obstruction, judicial abandonment and presidential inaction. Congress has engaged in deplorable grandstanding, adding provisions to the National Defense Authorization Act of 2012 (NDAA) barring the use of federal funds to try detainees in federal courts and imposing onerous conditions on transfer. The U.S. Court of Appeals for the District of Columbia Circuit has raised the bar for habeas relief to insurmountable levels, requiring trial courts to apply the irrebuttable presumption that incriminating documents produced by the government are reliable on their face.
As for the president, there are immediate steps that he can take to reduce the Guantanamo population without the consent of Congress, providing he is willing to take the political heat. A provision inserted into the NDAA allows the Defense Secretary to circumvent the congressionally-imposed restrictions by personally signing off on a detainee’s release or transfer by means of a national security waiver. President Obama has never tried to use the waiver provision, even though it could be invoked tomorrow to send the 86 detainees cleared for transfer to their homes or to a third country.
Most of the 86 cleared prisoners are Yemeni nationals. The administration has banned the repatriation of these individuals for fear that the unstable conditions in Yemen may result in these men being used as propaganda by the established al-Qaida operatives in that country. But Yemen has requested the return of its citizens, and its request should be honored. Diplomatic solutions should be found to resettle the rest of those cleared, the majority of whom cannot return home for fear of persecution or death.
As for the other prisoners, 36 are slated for prosecution — a mere sliver of the more than 700 men originally brought to the prison after the Afghan incursion. These men should be tried by Article III courts, which have successfully prosecuted hundreds of terrorism-related cases in the last 15 years. The military tribunal system has proven to be grossly inadequate; only six men have been prosecuted in the last 12 years, and most of those convictions were achieved through plea bargains. Military tribunals are comprised of military officers who are not lawyers, with rules preventing detainees from fully defending themselves. Unlike in civil courts, the tribunal system allows the introduction of coerced statements, and allows defendants to be tried ex post facto for conduct that was not considered to be a war crime at the time it was committed.
In January 2012, a group of nearly 30 retired generals wrote an open letter to the president, urging that those men slated for prosecution be tried in the federal courts. The generals argued that these men are not warriors, and "should be treated as the would-be mass murderers they are." Holding the trials in federal courts will "showcase America at its best, and underscore that we are a nation of laws. In the war of ideals, we can only lose if we forfeit ours."
Finally, there is the vexing problem of what to do with the approximately 50 men facing indeterminate incarceration. The government has designated these men as "too dangerous to transfer but not feasible for prosecution." We cannot keep people locked up because we don’t know what to do with them. That position not only impedes the closing of Guantanamo, it contradicts any claim that we are a nation of laws. Although President Obama has provided the possibility that these men will undergo additional administrative review by a Periodic Review Board, no such board has been created and none of the detainees slated for indeterminate confinement has been able to challenge the evidence against him. The president must commence these periodic reviews so that additional detainees may be approved either for prosecution or transfer.
Guantanamo has been called "the Anti-Statue of Liberty," a rallying cry for those who hate us. Surely we are not a nation that is content to harbor men in offshore prisons without charge or trial long after active hostilities against the nations that harbored the Sept. 11 attackers have ceased. Nor should we take pride in the fact that it takes starving men pushed beyond despair to remind us that the prison grinds on even when it is no longer in our consciousness. President Obama cannot blame Congress or the courts for his inaction, and the world is watching.•