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September 11, 2013

Twelve Years Later: 9/11 Demands Justice, Not GTMO

Twelve years after 9/11, those who planned the attacks have yet to be held accountable for causing the deaths of thousands of innocent civilians. Guantanamo policy is to blame.

While the military commission trial against Khalid Sheik Mohammed and his co-conspirators will resume next week on the isolated base in Cuba, no one should expect progress any time soon.  The commissions, even in their current third incarnation, have been plagued with one misfire after another, leading the chief of staff for the official overseeing Guantanamo to reportedly call the prison “a hot mess.”  The myriad recent problems with the commissions include:

The military judge failed to determine whether the Constitution applies to the commission proceedings as a whole, leaving the parties to argue over every possible application of the Constitution.
The court ruled defendants are not able to hear evidence of their own torture because it’s classified.
The CIA, unbeknownst to the military judge, had the ability to censor testimony, which was discovered when a white noise button was used, but not by the court security officer.
It was discovered that eavesdropping devices at the court could monitor attorney client communications.
Defense emails and documents have disappeared from government computers, leading the chief defense counsel to bar use of Pentagon computers for casework.

In a major counterterrorism speech this spring, President Obama pledged to redouble efforts to close Guantanamo – a symbol of torture and indefinite detention.  He said, “Guantanamo has become a symbol around the world for an America that flouts the rule of law.”

Congress has taken note.  The Senate is set to debate Guantanamo again when the National Defense Authorization Act hits the Senate floor this fall.  The bill reported out of committee removes restrictions on transfers from Guantanamo to the United States for prosecution, incarceration or medical treatment.  The bill also permits transfers for purposes of repatriation or resettlement so long as the Secretary of Defense notifies Congress and takes steps to mitigate the risks associated with transfers.  There are some fresh factors that may convince Members of Congress that it is finally time to close Guantanamo.

First, the end of combat operations in Afghanistan in 2014 could signal the end of the conflict that serves as the government’s legal basis for detaining individuals at Guantanamo.  The government must determine a lawful disposition for each of the remaining detainees, as it has done in all prior wars.

Second, as Congress faces yet another showdown over the budget and sequestration this month, the extraordinary cost of Guantanamo is striking. According to Pentagon figures, it costs taxpayers more than $2.5 million per prisoner at Guantanamo each year compared to $34,046 per prisoner annually at comparable Bureau of Prisons facilities. General John Kelly, commanding general of Southern Command which oversees Guantanamo, recently testified that the fixed cost of Guantanamo means that sequestration forces him to cut other military priorities.

Third, increased bipartisan willingness to tackle Guantanamo during the past several months could also lead more members of Congress to rethink their positions.  Senator McCain traveled with Senator Feinstein and White House Chief of Staff Denis McDonough to Guantanamo and pledged that it was time to close the prison.

Some in Congress claim that there is not a plan to close the prison, but in 2010, the Guantanamo Review Task Force outlined a comprehensive framework that remains relevant today.  Human Rights First published a comprehensive exit strategy for closing Guantanamo that applied the 2010 framework to the current detainees.

For starters, the administration should transfer the 84 detainees who have been cleared for transfer by the defense and intelligence agencies.  It should not prosecute any individuals in military commissions where there aren’t clear allegations of internationally recognized war crimes.  Federal courts have recently overturned two Guantanamo convictions, ruling that material support and conspiracy were not internationally recognized war crimes at the time of offense and therefore could not be tried before a military tribunal.  But those crimes could be charged in federal court.

The remaining 46 detainees must be repatriated or resettled at the end of hostilities, unless the government makes another determination before then.  Ten of those 46 detainees are Afghani and are likely to be part of any final security agreement with the government of Afghanistan or the Taliban.  Others may be cleared for transfer by a new review board set to start by December because they no longer pose a significant security threat to the United States.

A second concern expressed about releasing the Guantanamo detainees is fear that one or more may try to harm Americans in the future.  It is a legitimate fear, but in America, we do not deprive people of liberty based on abstract fears about possible future wrongdoing.  The question isn’t how we can have 100% certainty that no former Guantanamo detainee will harm us – that’s impossible - but rather, whether closing Guantanamo will be better for both human rights and national security than keeping it open.  Twelve years after 9/11, the answer is clear.  It is time to close Guantanamo.

This is a crosspost from ACS Law.