Will Gitmo Be with Us Forever?

Tomgram: Karen Greenberg, Will Gitmo Be with Us Forever?

Back in September 2006, I wrote a post, "The Facts on the Ground, Mini-Gulags, Hired Guns, Lobbyists, and a Reality Built on Fear," in which I wondered whether any new administration, any new president would ever be able to take real steps toward ridding our world of the realities created by the Bush administration -- like, for instance, our second "Defense Department," the sprawling, ill-organized, incompetent Department of Homeland Security (and the billions and billions of dollars in "security" interests that have already grown up around it), or the military's unprecedented new North American Command (Northcom). Noting that a little publicized $30-million maximum-security wing at Guantanamo was just then being completed by the U.S. Navy and that the American prison at Bagram Air Base in Afghanistan had also just undergone an upgrade (as more recently has Camp Cropper, one of our two main prisons in Iraq), I wondered whether a future president would even be capable of shutting down Guantanamo, no less our whole secret, offshore Bermuda Triangle of injustice (and the various "extraordinary rendition" operations that go with it).

As that question refused to quit my brain, I finally asked Karen J. Greenberg, Tomdispatch regular, recent visitor to Guantanamo, co-editor of The Torture Papers, and Executive Director of the Center on Law and Security at the NYU School of Law, to give the problem some serious thought. It seemed to me that a president who couldn't, or wouldn't, shut down Guantanamo would be unlikely to do much else that really mattered in our world. Here is her measured response. Any bets on whether it happens? Tom

Can Guantanamo Be Closed?

What a New President Could Do

By Karen J. Greenberg

A surprising number of Americans of note are in agreement. Guantanamo should be closed. The New York Times and the human rights community have, of course, called for it to be shut down, but so has the new Secretary of Defense Robert Gates. So has President Bush. Secretary of State Condoleezza Rice has given indications that she seconds Bush's call. Senator John McCain has said he would close the prison immediately upon becoming president.

On the Democratic side, while John Edwards and Bill Richardson have both called for Guantanamo's closing, the larger field of Democratic candidates has remained curiously silent on the subject. Do they know something we don't? Admittedly, one Democratic Congressman, James Moran of Virginia, has mentioned the possibility of including funds to close Guantanamo in the 2008 Defense Appropriations Bill, but the leading Democratic presidential hopefuls have as yet said very little about Guantanamo.

Perhaps they sense the Pandora's box of conundrums that would be unleashed in any genuine attempt to shut the place down. It's easy enough -- almost a no-brainer -- to say you want to close Guantanamo. After all, along with those photos from Abu Ghraib, the now-infamous extra-legal detention facility in Cuba has made the American government globally synonymous with the revocation of international law, the disregard of U.S. law, and the torture and abuse of prisoners or, as the Bush administration prefers to call them, "unlawful enemy combatants."

Actually closing Gitmo, however, is another matter entirely. The hard part is fleshing out the next thought: How exactly would you go about it? As Secretary of State Rice said recently, "The president would close Guantánamo tomorrow if someone could answer the question: And what will you do with the dangerous people who are there?" Congressman John Murtha has made a similar point: Knowing how to shut down Guantanamo -- given the set of nearly intractable legal knots the Bush administration has tied the prison complex and its detainees up in -- is "not that easy."

Perhaps those Democratic presidential candidates, realizing exactly this, are only waiting for some direction on the subject. So let's do our best to separate the wheat from the chaff and focus on what it would really take to move beyond words to action, when it comes to the most notorious prison complex on planet Earth.

First, let's get clear just what -- and who -- we're talking about. Forget those fourteen "high value" detainees, including Ramsi Binalshibh and Khaled Sheik Mohammed, whom the President suddenly transferred to Guantanamo in September 2006 -- finally, five years late, bringing the "worst of the worst" to the facility (as the administration had promised to do at its opening). These 14 are almost certain to be tried and convicted before this administration leaves office under the much-redesigned, jerry-rigged military commissions process it already has shakily in place.

Let's forget as well the nearly 100 detainees who have been cleared for transfer or release, many of them now in a new category -- "No Longer Enemy Combatants" -- and all of them waiting (and waiting and waiting) for the State Department to find countries willing enough to take them in. Nor are we talking about the 65 to 70 detainees who are considered culpable enough to be tried by some sort of military commission before January 2009.

The real problem -- the conundrum wrapped in an enigma -- comes with another group. At present, there are in Gitmo perhaps 160 detainees (as the public affairs staff at the facility told me), who will most likely never be charged, never be tried, and may nonetheless never be sent home. It's a category without a name, or really any precedent -- a category that all too conveniently defies solution and so keeps Guantanamo in operation.

For all prospective Gitmo closers, then, the question is: What are we going to do with individuals the Bush administration doesn't pretend to have sufficient evidence to try (even under its own deficient military commission process), but who, officials claim, are too full of potentially useful information to release? There are a few ideas floating around out there.

There is the suggestion that we transfer them to military prisons inside the United States. Sen. McCain suggested Fort Leavenworth in Kansas; Congressman Moran has urged military brigs in the five states within the jurisdiction of the extremely conservative 4th Circuit Court of Appeals, which might be likely to look the other way as prisoners are detained on American soil without recourse of any sort for the rest of their lives.

The other choices are stark: Return these detainees to their countries of origin; find an unlikely third country willing to accept them (possibly in return for some kind of financial quid pro quo) and not likely to torture them; or, of course, when all else fails and the obvious alternatives (each of which presents its own set of problems) seem to lead nowhere, leave them where they are -- and leave Gitmo open for business.

So let's try a little harder. How could a new president extricate us from this mess? The next occupant of the White House should start by accepting the following very American principle: Those who are not going to be charged with a crime should be returned to their home country, a third country, or the country where they were initially captured .

Behind this principle lies a reality which must also be accepted. The current Guantanamo debacle has little to do with the rule of law, the Geneva Conventions, or even, for that matter, a realistic assessment of the more pressing terrorist threats to the United States. At its heart of hearts lies a simple fear of political embarrassment.

U.S. officials have consistently held that they are guarding vital national security interests by keeping the never-to-be-charged detainees in custody. However, the sad truth is that, when it comes to most of these prisoners, what's really been at stake is the administration's need to save face by concealing its utter ineptitude. Privately, even Bush administration officials will acknowledge that the detainees were captured and sent to Gitmo capriciously. Rather than housing the "worst of the worst" (as the administration has regularly bragged), Gitmo penned up the easiest to grab, especially in Afghanistan. Often these were simply the individuals that local bounty hunters could provide or who were found on or near the battlefield. Many were put on planes to Guantanamo based on nothing but an American unwillingness to assert with confidence that they would never be a threat to the United States. Instead of masterminds, what the Bush administration netted were cooks, chauffeurs, wanderers, the mentally deranged, and -- sometimes -- children.

When an administration defiantly adverse to ever admitting error decided not to send home those who had been seized by mistake, it set itself a trap that it has been unable to escape to this day. Any presidential candidates who hope not to be similarly trapped might consider the following:

The Bush administration is already releasing the wrongly detained. Detainee by detainee, it has been quietly whittling away at its mistakes, sending home 385 detainees who look no more or less guilty than those remaining in custody.

Releasing all detainees who are not going to be charged restores judgment and the rule of law where irrational fear and a Commander-in-Chief presidency have reigned supreme. When asked to explain the threat posed by such detainees, officials and public relations officers at Guantanamo are quick to name the kind of venomous hate-speech that leaps from the mouths of people imprisoned without hope, under generally horrific conditions, for year upon year. The most notorious example of the supposed dangers posed by these detainees has been the Australian kangaroo skinner and Taliban convert David Hicks, who supposedly threatened to hurt American guards and their families if ever released. But there are undoubtedly plenty of other examples as well. Consistently, Guantanamo officials have acted as if angry words held magical powers, as if talking jihad could make it happen. Unfortunately, Gitmo is, by now, a delusional system in a non-judicial bubble, lacking any calming, rational presence, or anyone who can distinguish between something as simple as an angry rant and serious danger.

It is time to return to a system in which terrorists are tried in courts based on actual evidence. Unless this principle is accepted, Guantanamo won't be closed because there will always be U.S. prisoners who can't be tried and will never be freed.

A corollary to this that must be accepted is: There can be no absolute guarantee that some of the 160 former detainees, once freed and returned, won't commit acts of terror. But in the exponential growth of terrorist threats in recent years, particularly in the wake of the Bush administration's war in Iraq, a few of these small fry simply don't add up to a significant menace. After five years of interrogation, incarceration, and often long periods of isolation, many of them are, in any case, now deemed broken men. If any of them do prove threatening, let them be captured anew and tried for actual acts or plans on any of the many legal grounds available to law enforcement.

To shut Guantanamo, a future president would have to accede to another proposition as well: Those at Gitmo convicted of crimes should serve their sentences in U.S. military prisons on U.S. soil. Opponents insist that this would "endanger" Americans. According to Senator Jim DeMint, "To bring known terrorists, many of whom have killed Americans, to our shores risks the lives of additional Americans and encourages more attacks on our soil." Does Senator DeMint actually believe this? Does he truly consider the U.S. military incapable of keeping convicted prisoners under lock and key? How would a future president weigh such doubts against the giant sigh of relief the world at large would heave when the last door opened on the last cell in Guantanamo?

There is one additional point -- so self-evident that, to date, no one has thought to mention it -- all candidates should agree on: Bring no new prisoners to Guantanamo.

Earlier this year, I spoke with a group of burka-clad Muslim women in London who feared that friends or family members now in custody might be transferred to Guantanamo. I dismissed their comments as outdated and their fears as misplaced.

I assured them that, outside of the 14 high-value detainees, the Bush administration hasn't sent a single new prisoner to Guantanamo since late 2004. But, as it turned out, they knew something I didn't. Last month, a little story appeared in the back pages of some American newspapers. The United States had indeed moved its first new captive to Guantanamo in over two years -- and, according to the Washington buzz, more such detainees can be expected sooner or later, either from a war in Iran or some other "front" in the administration's global counterterrorism offensive.

To sum up: Separate Guantanamo from a new detention policy based on the rule of law.

It would behoove the next president -- and benefit the nation -- to close Guantanamo as a sign of starting anew. It should be the first order of global business for anyone entering the Oval Office. The next order of business should be the formation of a bipartisan commission to help settle national policy on the detention of foreign prisoners in any future anti-terror operations. The sooner this commission is formed, the better.

And here's one final piece of advice: These days it may seem un-American, but perhaps a simple, heartfelt apology to the angry innocents who were held all these years might be in order. More than anything, what Guantanamo needs is an American president with genuine guts, a man or woman who is willing to demonstrate that leadership is about making the hard choices, knowledgeably, openly, and with accountability.

Karen J. Greenberg is the Executive Director of the Center on Law and Security at the NYU School of Law and the editor of The Torture Debate in America and (with Joshua Dratel) The Torture Papers.

Copyright 2007 Karen J. Greenberg