Obama’s last chance to close Gitmo and end indefinite detention

With the presumption of guilt before innocence, it becomes easy to justify using coercive interrogation techniques and harsh imprisonment. But we can recommit to our values by closing Guantanamo and ensuring that the practices are never carried out again. 

WHYY is hosting a happy hour conversation about season two of “Serial” and the case of Bowe Bergdahl on March 15 (RSVP), hosted by NPR’s Quil Lawrence and featuring panelists Josh Fattal, Malcolm Nance, Rachel Van Landingham, and Chris Lombardi.

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The 2016 campaigns are commanding the attention of the news cycle, so it’s no surprise that President Obama’s call to lawmakers to shut down the U.S. detention center at Guantanamo Bay, Cuba, was relegated to a footnote on cable news. But the prison’s existence continues to be a pressing matter. In addition to the ongoing injustice of indefinite detention, there have been instances of blowback from our treatment of detainees. This is highlighted in the story of Sergeant Bowe Bergdahl, the focus of the second season of the popular podcast “Serial.”

Bergdahl, who spent five years in captivity in Afghanistan and Pakistan, before being freed in an exchange that released five Guantanamo detainees, felt the specter of the prison loom over him. He has reported that some of his captors (one of whom was a former Guantanamo detainee) invoked specific aspects of abuse at the prison, such as isolation and waterboarding, before subjecting him to similar treatment.

Government officials have had concerns about such blowback; in 2008, senators Dianne Feinstein and Sheldon Whitehouse wrote, “Condoning torture opens the door for our enemies to do the same to captured American troops in the future.”

With less than a year remaining in Obama’s term, we might be facing the last best chance to close the camp. The calculus is not ideal; a Republican-controlled Congress remains steadfast in opposing the president’s proposals. But conditions are as favorable as they might ever be. At the very least, we have a president right now who believes that the prison should close.

But lip service is not enough. Nor does it help that Obama’s plan proposes to move indefinite detention from Cuba “to a secure detention facility in the United States” — which would be akin to shutting down an illegal gambling website only to allow it to open up with a different URL. It might put an end to the prison, but it would not correct the inherent problem that made it a hotbed of violations.

To underscore the need for closing Guantanamo, it would help to understand how it became a legal black hole.

A tortured history

The selection of the prison’s location was a deliberate attempt to forego any oversight that would impose restrictions. Nevertheless, the Bush administration still sought legal cover for the practices that made the camp a hotbed of coercive interrogation and illegal detention. A request from a Joint Task Force commander to use aggressive interrogation techniques culminated in a Dec. 2, 2002, memo from then-Secretary of Defense Donald Rumsfeld which green lighted tactics such as waterboarding.

This memo was given a boost from the Office of Legal Counsel, where a Bush administration lawyer wrote an opinion arguing that the interrogation techniques that have since become synonymous with the name “Gitmo” could be allowed: “Legal doctrines could render specific conduct, otherwise criminal, not Unlawful.” With these legal acrobatics, the walls of the detention camp soon hosted beatings, sleep deprivation, and a variety of other “enhanced interrogation techniques.”

To his credit, Obama banned these techniques as one of his first acts as commander-in-chief. But the previous use of these techniques has complicated the matter of bringing the detainees to a fair hearing. Military commissions, a trial system that has been used to convict some of the detainees and continues to be an option for placing others on trial, have standards different from federal courts for what is allowed as evidence. Ashley Gorski, staff attorney with the American Civil Liberties Union’s National Security Project, explains that military commissions allow evidence obtained through coercion and hearsay, and that such evidence would not be allowed in a federal court. Allowing such shoddy evidence would certainly deny a fair hearing to any of the detainees.

Harsh conditions

The conditions of the camp have also been a matter of concern. Thanks to diligent reporters, we now know what inmates had to endure in detention. For example, inmates were placed in restrictive cages, and firsthand accounts highlight constant oversight by guards and punishment for minor infractions such as inmates talking to each other. The Center for Constitutional Rights, an organization that has represented detainees and documented their conditions, has reported a wide range of abuse, including solitary confinement and physical assault from guards as punishment for non-compliance.

The CCR has argued that such treatment violates several laws, including the Geneva Conventions. Some may dismiss adhering to the rules because of the crimes the detainees have been associated with, but it is important to remember that many of them have not been charged or even given a chance to contest their detainment.

Their living conditions have dealt psychological damage, much of which will last long after Guantanamo closes — if it closes. Consequently, several detainees have resorted to hunger strikes to protest. According to Laura Pitter, senior national security counsel for Human Rights Watch, a hunger strike is still being carried out today, but the number of strikers is unknown. Furthermore, Pitter acknowledges that the strikes have underscored for Obama the need to close the camp.

Obama has acknowledged that the conditions at the camp have been invoked by terrorists fighting the U.S. as a means to gather recruits. The administration’s plan to close Gitmo states that its continued operation “weakens our national security by furthering the recruiting propaganda of violent extremists.”

I asked Murtaza Hussain, a writer with The Intercept, whether or not this was a new talking point to sell the closure of Gitmo. She said, “Opponents of the camp have been making this point for years. It is a subtle way of pointing out the blowback from bad policies. It’s no coincidence … that 14 years after the creation of the camp a group like ISIS is putting its detainees in orange jumpsuits in imitation of Guantanamo practice. It has been a profound tool not just for terrorist propaganda, but for reducing the moral prestige of the [U.S.] throughout the world.”

Shuttering the prison would undercut terrorists’ means for adding to their ranks. The sooner lawmakers realize this, the sooner they could work toward closing it.

Ending indefinite detention

Even with the end of coercive interrogation, and even if conditions at Guantanamo were upgraded, its most worrisome aspect, indefinite detention, remains. Unlike coercive interrogation and Geneva-violating conditions, indefinite detention cannot be mitigated by degree. It either exists or does not. So a reduction in the number of Guantanamo detainees from around 800 to 91 might be a step in the right direction, but each day indefinite detention continues is one more day that the practice is entrenched as an acceptable method for handling prisoners. And if we are to place the chapter of Guantanamo behind us, we cannot allow there to be a precedent from which we can pick up and resume this illegal practice.

Karen J. Greenberg, director of the Center on National Security at Fordham University’s School of Law, explains that these last 91 detainees fall into three categories:

36 who are cleared for release/transfer.
10 who are either charged and will stand trial or who have been convicted in military commissions.
45 who are deemed too dangerous to release and will have their status determined by a Periodic Review Board, an inter-agency body that determines if those needing review require continued detention.

The 36 in the first category need to be released or transferred as soon as possible, she says.

Of the 10 in the second category, seven have been charged and three have been convicted. If the government does have evidence to try the seven, then, according to Gorski, “federal courts, not military commissions, are the way forward.” It has already been proven that military commissions delay the delivery of justice. And even if time was not a factor, they would not provide a just hearing because of lax standards for evidence. Allowing hearsay and statements gathered through coercion would grossly skew verdicts in favor of the prosecution.

With the remaining 45 detainees, Gorski and Pitter agree that the PRB needs to carry out reviews soon so that detention is not unnecessarily prolonged. Pitter adds that in HRW’s opinion, any remaining detainees that the government has evidence against should either be prosecuted or released. “It is just wrong to hold people in indefinite detention, which is a violation of international law.” Gorski agrees: “If a prosecutor cannot put together a case against a detainee, there is no reason that person should continue to be imprisoned, whether in Guantanamo or the United States.”

That last point speaks to a proposal that offers to move the detainees to a facility on U.S. soil. However, Gorski argues that this would essentially create a “Guantanamo North,” a site that might not be the notorious Guantanamo of today, but would still retain indefinite detention. So any inmates who have not been charged bust be reviewed and released. Fortunately, the president’s plan has set the fall of this year as a deadline for all PRB cases to be completed.

But any optimism is tempered by Obama’s unfulfilled pledges to shutter the camp for good. These pledges pre-date his first year as president and can be found in his campaign promises. The satirist John Oliver has recently taken to his HBO show, “Last Week Tonight,” to skewer the president’s almost-annual tradition of committing to close the prison by comparing him and the camp to the aging couple from the Pixar film, “Up.” And those who have been calling for the camp’s closing can only hope that, with less than one year left, Obama might finally end this chapter. If not, then Guantanamo will be bequeathed to the next president.

When I asked which of the current candidates would be most amenable to closing Guantanamo if it was still open by 2017, Greenberg said that it was hard to tell, as none of the candidates have made the issue a focus of her or his campaign.

She suggested that one talking point that could persuade lawmakers to close the camp would emphasize the tax burden that keeping it open has placed on Americans. But if this last talking point cannot persuade a Congress dominated by lawmakers who claim to be fiscally conservative, then the administration will have to go it alone in closing a facility that has facilitated torture, sustained illegal detention, and has worked against our national security interests. Gorski and Pitter argue that congressional recalcitrance can be blamed only to a degree, and that at some point, the administration will have to do more to ensure that Guantanamo closes.

When we become willing to indefinitely detain prisoners and to deny them a chance to contest their detainment, we are only a stone’s throw away from denying other rights. With indefinite detention comes the presumption of guilt before innocence, and with this rendered verdict, it becomes easy to justify using coercive techniques and imprisonment in harsh conditions. But we can recommit to our values by closing Guantanamo and ensuring that the practices are never carried out again, not in Cuba, the U.S., or anywhere else.