Guantánamo’s Unhappy Birthday

Today, the detention facility at Guantánamo Bay, Cuba turns 19. Nearly two decades ago, detention operations commenced when the first C-17 carrying 20 detainees arrived at the 45-square-mile American outpost on the southeastern tip of Cuba. In that time, roughly 780 detainees have passed through the facility. Nine have died there.

On this unhappy birthday, 40 detainees remain — including two who arrived on that inaugural Jan. 11, 2002 flight. Over nearly two decades, Guantánamo has proved to be an abject policy failure. In the face of that failure, proponents of Guantánamo detention rehash warmed-over arguments to defend its continued existence. They claim that the facility provides significant intelligence, affords policymakers a necessary option for detaining individuals captured in the so-called “Global War on Terror” under the laws of war, offers a venue for trying terror suspects in military tribunals, and keeps dangerous enemies from returning to the battlefield.

But the arguments for preserving Guantánamo detention operations are hollow. Whatever intelligence collection benefit Guantánamo may have provided has long since ceased. The necessity of an American law-of-war detention facility on Cuban soil is disproved by its disuse. The military tribunals there might most generously be described as ineffective. And the dangerousness of the detainees who remain is demonstrably mitigable.

It is long past time to close the detention facility at Guantánamo Bay — President-elect Joe Biden can and should begin doing so upon taking office.

By any measure, Guantánamo never realized its explicit purpose as a high-value intelligence collection facility, outside the bounds of law. Publicly, the government described Guantánamo as a place for the “worst of the worst,” filled with people who “would gnaw through hydraulic lines in the back of a C-17 to bring it down.” But by April 2003, when nearly 90 percent of the men who would be detained at Guantánamo had already arrived, Secretary of Defense Donald Rumsfeld secretly complained that the United States had “populat[ed] Guantánamo Bay … with low-level enemy combatants.” He further restricted transfer to Guantánamo and he looked to the State Department to negotiate an Afghanistan-based detention regime to stem the flow of low-level fighters to Guantánamo. When the Supreme Court forced the Defense Department to institute more robust detention-review measures, even Rumsfeld was surprised by the number of men those reviews concluded were detained without legal basis at Guantánamo.

Unfortunately, as the Guantánamo detention review processes matured, the number of low-level or wrongly detained men grew. As recently as this October, a Periodic Review Board Review Committee — made up of the secretaries of state, defense, and homeland security, as well as the attorney general, the director of national intelligence, and the chairman of the Joint Chiefs — approved Said Salih Said Nashir for transfer, subject to appropriate security measures, after determining that detaining Nashir “is no longer necessary to protect against a continuing significant threat to the United States.” Nashir, they decided, possessed only “low level … training” and “lack[ed] … leadership positions in Al Qaeda or the Taliban.” Nashir and five other similarly assessed detainees remain in detention purgatory.

America’s project of law avoidance at Guantánamo also collapsed under judicial scrutiny between 2004 and 2008. The U.S. Supreme Court ultimately recognized that the U.S. Constitution followed America’s exclusive, effective control of Guantánamo Bay, thereby rejecting the argument that it constituted “the legal equivalent of outer space.” That series of legal defeats presaged the failure of three generations of Guantánamo military commissions to deliver justice quickly, durably, or — increasingly — at all. Rough, expeditionary justice that deviated too far from the standards of the Uniform Code of Military Justice and that too often relied on evidence obtained under torture gave way to impermanent convictions, interminable pretrial proceedings, and revelations about the rendition, detention, and interrogation (or torture) program that may make fair trials in any forum impossible.

By the autumn of 2006 — nearly 15 years ago — President George W. Bush recognized that Guantánamo not only failed to contribute to U.S. counter-terrorism efforts, it inhibited them. The prospect of detention at Guantánamo Bay continues to hamper counterterrorism cooperation with our partners and allies. It figures, however effectively, in the propaganda of terrorists and Islamist militants. It is viewed as a symbol of America’s oppression of Muslims. And the fact of the facility itself remains a rebuttal point for illiberal regimes with atrocious human rights records.

Nevertheless, Guantánamo detention continues. It survives even though the detention facilities there are crumbling in the face of insufficient funding for maintenance. It survives even though the United States long ago wound up its detention operations in Afghanistan and released all of its — sometimes more worrisome — internees there. It survives even though its operations require the deployment of approximately 1,500 servicemembers and cost $540 million per year. (This works out to approximately $13 million per detainee — the average annual cost of incarceration for most federal inmates, by contrast, is around $40,000.)

Moreover, Guantánamo survives despite not having been used for new detainees in over a decade. Although he promised to “load Guantánamo up with bad dudes,” President Donald Trump has not transferred a single prisoner there — he has even transferred one out. In fact, the United States has not transferred a single Global War on Terror detainee to Guantánamo since June 2008. Indeed, as early as 2003, regular transfers to Guantánamo ceased and the Bush administration began reducing the facility’s detainee population. Between December 2003 and January 2008, the United States transferred out of Guantánamo nearly 440 of the 532 total detainees released during the Bush administration. And most of those detainees brought to Guantánamo during this period were transferred from CIA black sites as part of America’s effort to wind down the torture program.

The facility’s relative disuse belies claims about its value as an intelligence or counter-terror tool. If Guantánamo were so important, why were no detainees — especially those that would be classified as “high value detainees” at Guantánamo — transferred in from the Parwan Detention Facility when the United States wound down detention operations in Afghanistan? Why did the United States transfer none of the ISIL detainees in Kurdish custody to Guantánamo when Kurdish forces came under Turkish attack in 2019? Why has the Department of Defense reportedly resisted efforts to continue or expand detention operations at Guantánamo? And why did the focus of interrogations at Guantánamo shift from international plots to Guantánamo’s own security as early as 2008, before becoming voluntary thereafter?

It is not as if the United States has failed to capture any significant individuals affiliated with al Qaeda, the Taliban, or associated forces in the last 12 and a half years. But, instead of relying on Guantánamo to satisfy a supposed necessity, policymakers from three administrations and both parties have turned away from the facility. Instead of transporting detainees halfway around the world, they have preferred to detain people under the laws of war close to the point of capture.

Policymakers have similarly preferred the ordinary criminal justice system over the expensive, uncertain, and increasingly torture-compromised Guantánamo military commissions. Despite costing taxpayers $60 million per year, three generations of military commissions spread over 19 years have produced eight convictions (six by plea agreement) among which only one has survived post-conviction appeal. In fact, the United States is now likely to prosecute no more than a quarter of the 80 Guantánamo detainees it once anticipated trying by military commission. Even those military commission prosecutions that are ongoing are beset by seemingly endless challenges. For example, after eight and half years of pre-trial proceedings, presided over by seven different judges, the 9/11 military commission is still nowhere close to commencing its actual trial.

Often, the last redoubt of Guantánamo’s proponents is to point to the threat posed by the men who remain detained there. Some argue that the last 40 detainees must be the most threatening of all the detainees brought to Guantánamo. Others, pointing to reengagement assessments, argue that former Guantánamo detainees pose an unmitigable threat to the United States after release. Both arguments are exaggerations.

First, it is a mistake to conclude that the 40 detainees who remain at Guantánamo are necessarily more threatening than the 730 who have left. Of the six men currently approved for transfer, subject to appropriate security measures, two were approved for transfer by the 2010 interagency review. Their continued detention at Guantánamo a decade later says more about the peculiarities of their cases than their relative threat. Four of those approved for transfer remain detained because the Trump administration simply failed to pursue their transfer. Still others, like Majid Khan, remain detained at least in part because of the glacial pace of the military commission proceedings.

Second, the post-transfer threat of Guantánamo detainees is mitigable. By negotiating detainee-transfer frameworks at the highest levels of government with robust interagency vetting, as well as charging an office at the State Department with ensuring the implementation of those frameworks, the Barack Obama administration succeeded in reducing by a factor of five the confirmed rate at which former Guantánamo detainees re-engaged in “terrorist or insurgent activities” as compared to the Bush administration. In exaggerating the post-transfer threat of Guantánamo detainees, proponents of Guantánamo combine Bush- and Obama-administration transfers and conflate the “confirmed” and “suspected” categories to misleadingly claim that 30 percent of Guantánamo detainees return to the battlefield. While confirmation is based on preponderance of evidence available to the intelligence community, suspected reengagement is based on unverified or single-source reporting.

Fewer than 5 percent of the detainees transferred during the Obama administration, and subject to the strictures of its process, are confirmed to have reengaged in terrorist or insurgent activities against any target. The rate at which former Guantánamo detainees target Americans is even smaller. According to public reporting, the United States assessed, through at least the middle of 2016, that no Obama-administration transferees participated in hostile activities involving Americans. At that time, fewer than 15 former Guantánamo detainees — all released during the Bush administration — were implicated in hostile activities involving Americans, primarily in the course of firefights involving U.S. forces in active war zones. Tragically, these hostile activities resulted in the deaths of six Americans — and the death of one American is the death of one too many. But, according to a knowledgeable official, “many of these incidents were large-scale firefights in a war zone [and] we cannot always distinguish whether Americans were killed by the former detainees or by others in the same fight.”

Violations of parole like these have occurred in every war. Yet the fact that released, formerly detained fighters may return to the battlefield in an ongoing armed conflict has not prevented the United States from releasing or exchanging such fighters during hostilities throughout its history. It also does not make Guantánamo detainees inherently more dangerous than enemy fighters released in earlier American wars or even its current wars. Indeed, the U.S. government routinely released detainees it held in Afghanistan throughout the war there. Releasing formerly detained fighters back into a theater of active hostilities like Afghanistan certainly afforded those fighters greater opportunity to attack Americans than have negotiated transfers, subject to appropriate security measures, of Guantánamo detainees to a stable, partner government.

Finally, if mitigating the threat of post-transfer reengagement were really the primary concern of Guantánamo proponents, they should have spoken out against the Trump administration’s mishandling of two Libyan nationals resettled in Senegal and its closely related decision to shutter the State Department’s Guantánamo Closure Office. It is difficult to reconcile Guantánamo proponents’ apparent concern over the threat posed by former Guantánamo detainees with their subdued response to the totally preventable disappearance of two former detainees into an active war zone.

The hollowness of proponents’ arguments to preserve Guantánamo underscore the need to close the facility. The Biden campaign recognized this need: It supported closing Guantánamo and the Democratic Party included a pledge to do so in its platform. What’s more, ending detention at Guantánamo is a prerequisite for Biden to fulfill his promise to end America’s so-called “forever wars.”

To fulfill that pledge and to conclude what was once a bipartisan project, the Biden administration need only invest moderate political, bureaucratic, and financial resources. Even without legislative reforms, it might responsibly transfer as many as 30 of the 40 detainees who remain at Guantánamo. To do so, the Biden administration should issue guidance to the Periodic Review Board that clarifies the standard for continued detention to ensure it is restricted to those that pose a genuine and significant threat to the United States today. The new administration should also resuscitate the Guantánamo closure policy process developed during the Obama administration and left to languish during the Trump administration. Although that process was time consuming, it demonstrated that negotiated transfer frameworks, subject to rigorous interagency vetting and post-transfer engagement, substantially mitigate the post-transfer threat of former Guantánamo detainees. The Biden administration could make even more progress towards Guantánamo closure by pursuing plea bargains (whether before military commissions or federal courts) to resolve ongoing cases before military commissions.

On its 19th birthday, detention at Guantánamo Bay persists as a vestige of a failed effort by the U.S. government to evade the law, coerce intelligence from its captives, and impose swift justice as a tactic to defeat terrorism. It survives as a supposed necessity despite a decade or more of disuse by policymakers, and despite its diplomatic, reputational, and fiscal costs. In this light, Guantánamo and the 40 detainees who remain there stand as a monument to the difficulty that the United States has faced — and continues to face — in recovering from bad decisions made in the wake of 9/11 that prioritized superficial toughness and expedience over efficacy and legality. The Biden administration can and should close the detention facility at Guantánamo Bay. And while putting Guantánamo behind us is long overdue, let us hope that its lessons on how not to make national security policy are long remembered.

Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization, where he represents Ammar al-Baluchi, one of the five codefendants in the 9/11 conspiracy case who face capital charges before the military commission at Guantánamo Bay, Cuba.  From 2013 until 2017, he served as a senior adviser to the Special Envoy for Guantánamo Closure at the U.S. Department of State.

The opinions and views expressed are those of the author alone. They do not represent the views of the U.S. Department of Defense or the U.S. government.

Image: U.S. National Guard (Photo by U.S. Air Force Senior Airman Gino Reyes)