Can Guantanamo Wait?

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Can Guantanamo Wait?

A front page New York Times story today shines light on the increasingly troubling situation at the detention facility at Guantanamo Bay. For months a hunger strike has continued, now with 93 participants. The article also highlights the back and forth between Congress and the administration regarding the prison’s closure. While the situation remains complicated ethically, legally and security-wise, there are concrete steps that can be made to improve the situation in the near term, while moving towards closure of the prison. As the situation at Guantanamo worsens, there is a need for a renewed effort for Congress and the administration to work together on moving forward.

Uncertainty and inaction drive worsening situation at Guantanamo Bay prison. The New York Times’ Charlie Savage reports: “Days earlier, guards had raided Camp Six and locked down protesting prisoners who had blocked security cameras, forbidding them to congregate in a communal area. A hunger strike is now in its third month, with 93 prisoners considered to be participating — more than half the inmates and twice the number before the raid… The spark for the protest is disputed. Detainees, through their lawyers, say that when guards conducted a search of their cells on Feb. 6, they handled their Korans in a disrespectful way. Prison officials dispute that. But both military officials and lawyers for the detainees agree about the underlying cause of the turmoil: a growing sense among many prisoners, some of whom have been held without trial for more than 11 years, that they will never go home.” The issue has received international attention. Reuters reported earlier this month, “The head of the International Committee of the Red Cross on Thursday expressed opposition to the force-feeding of prisoners staging a mass hunger strike at the Guantanamo prison camp and said he urged President Barack Obama to do more to resolve the “untenable” legal plight of inmates held there.”

Thomas Wilner, an attorney with extensive experience in detainee law, explains. “One hundred and sixty-six men are still held at Guantanamo. Fewer than 20 are ‘high-value detainees,’ men who were transferred to Guantanamo from other locations several years ago and are scheduled to stand trial for war crimes… Many simply were in the wrong place at the wrong time. In fact, more than half of them — 86 — were cleared for release more than three years ago by a special presidential task force composed of top U.S. intelligence and law enforcement officials. Some were cleared even before that, during the Bush administration. Because of congressional restrictions, however, they remain locked up.” [NY Times, 4/24/13. Reuters, 4/11/13. Thomas Wilner, 3/28/13]

While there was once a consensus to close Guantanamo Bay prison, Congressional intransience has repeatedly blocked needed measures to do so. By 2008, President Bush and several members of his Cabinet, including Secretary of Defense Robert M. Gates and Secretary of State Condoleezza Rice, advocated the close of Guantanamo Bay. President Bush later reversed his position, citing the numerous legal and political battles that would ensue. Both presidential candidates in 2008, Senators John McCain and then Senator Barack Obama, supported closing the facility. The day after Obama’s first inauguration, he ordered Guantanamo closed within a year issuing an executive order to promptly “close detention facilities at Guantánamo, consistent with the national security and foreign policy interests.”

To do so, however, detainees must be transferred or released. After an initial round of transfers, other nations proved reluctant to accept detainees unless some were accepted by the U.S. itself for trial or resettlement. As the Times summarizes, “While President Obama made closing the prison a top priority when he entered the White House, he put that effort on the back burner in the face of Congressional opposition to his plan to move the detainees to a Supermax facility inside the United States… That disappointment was heightened by Mr. Obama’s decision in January 2011 to sign legislation to restrict the transfers of prisoners… While Congress blocked any transfers to countries that raised security issues throughout 2011, lawmakers later gave the Pentagon the power to waive most restrictions on a case-by-case basis. The administration, however, has not used that authority.” [NY Times, 4/24/13. Executive Order, 1/22/09. Huffington Post 1/3/2013]

Improving the situation – for counterterrorism as well as humanitarian reasons – demands flexibility from Congress and action from the Administration. In a letter to Secretary of Defense Chuck Hagel, Human Rights Watch outlined specific steps: “The National Defense Authorization Act for Fiscal Year 2013 empowers the Secretary of Defense to approve these transfers using the certification set forth in section 1028(b) and the national security waiver set forth in section 1028(d). We understand there are approximately 86 detainees eligible for transfer (56 of whom are from Yemen). We urge that you begin signing certifications and waivers to return detainees to their home countries, or resettle those for whom it is appropriate.” HRW further requests that detainees who have not been cleared receive periodic reviews “so that detainees can challenge their designations, and additional detainees can be approved for transfer.”

In addition, Chair of the Senate Select Committee on Intelligence Sen. Dianne Feinstein referred to a recent GAO report that found there are at least 104 places inside the U.S. to safely lock terrorists up stating, “This report demonstrates that if the political will exists, we could finally close Guantanamo without imperiling our national security… The United States already holds 373 individuals convicted of terrorism in 98 facilitates across the country. As far as I know, there hasn’t been a single security problem reported in any of these cases.” [HRW, 3/29/13. Dianne Feinstein, 11/28/13]

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