Closing Guantanamo?

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Introduction

On his second full day in office in 2009, President Barack Obama signed an executive order calling for the closure of the detention facility at the U.S. Naval Station at Guantanamo Bay, Cuba, in no more than one year. But a series of political developments have stymied the administration’s efforts to shutter the prison, and the facility remains in operation.

The White House says it remains committed to closing the prison and has implemented new policies, such as the March 2011 executive order, in an effort to maintain a "lawful, sustainable, and principled regime" for long-term detention until the facility can be shut down. These new policies suggest that "Guantanamo will be open for a long time," says Matthew Waxman, a CFR expert on law and foreign policy. The November 2011 trial of Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing in 2000, marks the resumption of military commissions at Guantanamo under the Obama administration.

The plan to close Guantanamo poses a string of legal and security issues, including how to charge and try inmates and how to safely release those no longer deemed a threat. As the facility lurches into an uncertain future, it continues to attract controversy--from the so-called "Guantanamo Files" released by WikiLeaks in April 2011 to a revival of the torture debate after the May 2011 death of Osama bin Laden.

Unusual Suspects

Nearly eight hundred prisoners have passed through Guantanamo since it opened in 2002. Most have been transferred to other countries for continued imprisonment or release; fewer than two hundred remain. Most detainees were captured in Afghanistan or along the Pakistan-Afghanistan border in the early U.S.-led efforts to destroy safe havens linked to terrorists who plotted the September 11 attacks. Of those, more than one-third are Yemeni nationals, though the facility has held prisoners from forty-eight countries, including Algeria, China, Pakistan, Saudi Arabia, Syria, and Canada, according to a prisoner database maintained by the New York Times. Guantanamo detainees include terrorist trainers, financiers, recruiters, facilitators, bomb makers, and bodyguards to the late Osama bin Laden.

Inmates fall into three distinct legal categories (PDF), according to a February 2011 Congressional Research Service (CRS) report:

1. Non-penal enemy combatants, or those held to prevent a return the battlefield.
2. Prisoners who are pending or likely to face criminal charges.
3. Prisoners who have been cleared for transfer or release to a foreign country but remain in U.S. custody due to concerns about their possible mistreatment upon transfer.

Non-penal detainees must be released upon the "cessation of hostilities" according to Article 118 of the Geneva Conventions. However, since the war against al-Qaeda may have no clear ending, these prisoners could be held indefinitely.

Trials and Tribulations

In January 2009, the White House created the Guantanamo Review Task Force (PDF) to conduct an official review of all Guantanamo detentions to evaluate which prisoners should be prosecuted, and what forum of adjudication would be most suitable for their trials based on evidentiary considerations--either military commission or an Article III federal court. For this review period, the United States suspended all military commissions.

In March 2011, President Obama issued an executive order restoring military tribunals and establishing formal procedures for reviewing cases in which non-penal detainees are being held indefinitely without trial. According to the Washington Post, the reviews apply "to at least forty-eight" detainees who, because of "evidentiary problems" (WashPost) cannot be tried in either military or civilian court. The periodic review procedures are not designed to test the legality of detention, says Waxman, but whether or not the detainee’s prolonged incarceration is warranted on the basis of national security.

Thirty-six individuals are slated for potential prosecution. They will face one of two venues for trial:

Military Commissions: Military commissions or tribunals were created under the Bush administration via the Military Commissions Act of 2006 to try "unlawful enemy combatants," namely individuals who are "part of forces associated with al-Qaeda or the Taliban" and "those who purposefully and materially support such forces in hostilities against U.S. coalition partners." In particular, this system sought to limit the ability of detainees to challenge their detention via habeas corpus petitions (a ruling later overturned) and allow hearsay evidence into trial. It was also intended to keep the death penalty as an option. President Obama amended this law with the Military Commissions Act of 2009 (CSMonitor), which placed greater restrictions on the use of hearsay and "coerced" evidence, and afforded detainees greater due process.

U.S. Federal Courts: President Obama’s January 2009 and March 2011 executive orders affirm the White House commitment to try detainees, when evidence permits, within the federal court system under Article III of the U.S. Constitution. However, since Obama took office, only one prisoner, Ahmed Ghailani, has been transferred from Guantanamo to face prosecution in the United States. (As discussed below, congressional action has prevented further transfers to the United States since January 2011.) The White House has sought to use Article III courts in cases that meet the higher evidentiary standards for federal cases, while relying on military commissions for those cases that cannot meet this burden, but where there is strong knowledge of guilt.

The ACLU and other human rights groups condemn Obama’s decision to reinstitute military tribunals, saying the commissions are unjust and often reliant on hearsay or testimony obtained through "torture." They claim allowing such evidence violates international standards and would be inadmissible in domestic U.S. courts. However, the Obama administration says it has addressed these concerns by enacting critical reforms (PDF) that place a ban on the use of "statements taken as a result of cruel, inhuman, or degrading treatment."

Critics also contend Article III courts have proved more than sufficient for the prosecution of terrorists, citing the government’s strong track record of terrorist convictions, including the would-be New York subway bomber, Najibullah Zazi (WashPost) ; the would-be Times Square bomber, Faisal Shahzad (CSMonitor); and the January 2011 conviction of Ahmed Ghailani (NYT). Ghailani, the only Guantanamo transfer to face trial in U.S. federal court, is serving a life sentence for his involvement in the 1998 bombing of the U.S. embassies in Kenya and Tanzania. But proponents of military tribunals argue that Ghailani’s conviction was a near miss, emphasizing the government’s failure to convict the defendant on over 280 additional charges of murder and conspiracy.

Obama’s decision to pursue detainee trials in U.S. federal courts sparked public controversy and political backlash, particularly from conservative members of Congress. As a result, Congress passed the Ike Skelton Defense Authorization Act for FY2011 (DAA 2011), which prohibits using U.S. military funds for the transfer or release of Guantanamo prisoners into the United States. This law effectively prevents the Obama administration from employing Article III courts in detainee trials, and ensures that, for at least FY 2011, military tribunals will be the only viable alternative. According to the February 2011 CRS report, the act constitutes the most significant impediment to the executive branch’s promise to close the detention center at Guantanamo.

The most notable outcome of the Skelton Act was the April 2011 announcement by Attorney General Eric Holder that Khalid Sheikh Mohammad (KSM), the September 11 mastermind, would be tried by military commission at Guantanamo Bay--a marked shift from prior efforts to try him in a New York City courtroom. However, Holder remarked that he continues to believe Article III courts represent the best alternative for such trials.

In July 2011, the White House announced its intent to prosecute a Somali militant, Ahmed Warsame (LAT), in a New York federal court. Warsame, who is charged with providing material support to al-Shabaab and al-Qaeda in the Arabian Peninsula, was apprehended in waters off the Somali coast and held on board the U.S.S. Boxer for weeks of questioning. Some experts say the Obama administration’s decision to circumvent the Guantanamo system and try Warsame in New York is an indication of the White House’s intention to shutter the detention facility. Others suggest the move may reflect a lack of evidence that would preclude holding Warsame as a POW or prosecuting him for war crimes under international law (Bloomberg).

The November 2011 trial of Abd al-Rahim al-Nashiri at Guantanamo marks the first military commission under the Obama administration. Nashiri was captured by the CIA in November 2002 and subjected to coercive interrogation techniques prior to his transfer to Guantanamo (NYT). Analysts see this case, in which prosecutors could seek the death penalty, as a precursor to the prosecutions of KSM and other 9/11 conspirators.

Catch and Release

President Obama’s 2009 executive order stated that persons in detention at Guantanamo at the time of closure "shall be returned to their home country, released, transferred to a third country, or transferred to another U.S. detention facility in a manner consistent with law and the national security and foreign policy interests of the United States."

In its January 2011 final report, the Guantanamo Task Force identified forty-eight prisoners for preventative detention, thirty-six for prosecution, and ordered 121 to be transferred to another country. In addition, thirty Yemeni detainees were ordered for "conditional" detention--based on the adverse security environment in Yemen--but potential future release.

Originally, the White House planned to retrofit a prison in Illinois for the transfer and continued detention of some Guantanamo detainees, but preparations were scuttled by congressional bans on relevant appropriations under the DAA 2011 as well as transfer restrictions.

If the Pentagon determines a prisoner is no longer a significant threat to U.S. national security, he may be transferred to a location outside the United States. The majority of prisoners that have passed through Guantanamo were transferred to third countries for continued detention or eventual release. According to the New York Times, six hundred detainees have been transferred to over fifty countries since the prison opened in 2002. Over half have been sent to Afghanistan, Saudi Arabia, Pakistan, or Yemen.

But while sending inmates abroad--either to their home country or a third country that agrees to take them--may be the United States’ preferred option, international law has prevented the United States from doing so in some cases. Under Article 3 of the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (to which the United States is a signatory (PDF)) it is illegal to "expel, return, or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Several dozen detainees cleared by the Defense Department for transfer or release, as noted above, remain stranded at Guantanamo either because no country will accept them or there is cause to believe they may be tortured or mistreated upon relocation. In addition, Congress has passed recent legislation instituting specific requirements that may restrict detainee transfer--such as waiting periods and extra Pentagon documentation. In signing the 2011 National Defense Authorization Act, which contains such restrictions (ABC), Obama condemned the measures as interfering with "the authority of the executive branch to make important and consequential foreign policy and national security determinations" and impeding the government’s "ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries."

Cloaked in Controversy

The Bush administration created Guantanamo in January 2002 to detain terrorism suspects beyond the reach of U.S. laws while restricting the ability of inmates to challenge their detention. Guantanamo has faced many legal challenges and much controversy that some critics suggest tarnish the United States’ moral authority and provide a potent propaganda tool for terrorist recruitment. Proponents of the facility maintain it is a necessary and valuable asset in the global "war on terror"--providing crucial intelligence that may prevent future terrorist attacks.

In April 2011, the WikiLeaks organization released thousands of pages of classified military documents (NYT) that shed new light on life at Guantanamo and the often chaotic process of prisoner assessment. The material, which dates from 2002 to the beginning of 2009, reveals instances where the release of innocent men took several months, as well as episodes where those released were considered likely future risks to U.S. national security. Documents indicate the Pentagon released Abu Sufian Qumu, who was captured in Pakistan in 2002, to the Libyan government in 2007 despite a negative risk assessment and an established history of association with al-Qaeda and the Taliban.

Some critics allege the leaked files confirm fundamental flaws in Guantanamo policies that persist despite changes implemented by the Obama administration. Karen Greenberg, executive director of the Center on Law and Security at NYU, says the United States needs a better system for assessing and addressing the dangerousness of people in custody. She notes, "We still have in place essentially no plans for rehabilitation or deradicalization," and "we’ve put [those detainees in preventative detention] in a category that they can never get out of, with or without evidence."

The May 2011 death of Osama bin Laden and revelations regarding the trail of intelligence that led to his whereabouts also rekindled the Guantanamo debate over whether the use of so-called enhanced interrogation methods (NYT) employed under the Bush administration but banned under Obama, has been vindicated. Information gathered by interrogators at Guantanamo, some of which may have been elicited using harsh methods such as waterboarding, reportedly convinced CIA officials to follow the trail of an al-Qaeda courier known as Abu Ahmed al-Kuwaiti. Kuwaiti, in turn, inadvertently led the CIA to bin Laden’s compound in Abbottabad, Pakistan--the eventual target of the May 1 U.S. SEAL raid which killed the al-Qaeda chief.

In the fallout, Chairman of the House Committee on Homeland Security Peter King (R-NY) asserted, "Osama bin Laden would not have been captured and killed if it were not for the initial information we got from Khalid Sheikh Mohammed after he was waterboarded." But Senator John McCain (R-AZ), himself a victim of torture as a POW in North Vietnam, countered that waterboarding and other so-called enhanced methods had nothing to do with bin Laden’s demise. McCain stated ,"Ultimately, this is about morality," adding, "We are America, and we hold ourselves to a higher standard. That is what is really at stake."