The fundamental question of whether Guantanamo should even exist as a prison has been lost in the cacophony over hunger strikes, the prosecution's access to defense client-privileged email, government eavesdropping on attorney-client conferences, and the overall abject failure of military commissions to prosecute alleged terrorists in any meaningful way.
Let's look at the basic question of whether to keep Gitmo open at all. We stood behind the President on his second day in office along with over a dozen other retired admirals and generals as he signed an executive order directing that Gitmo be closed and the prisoners transferred to prisons in the U.S. That was five long years ago, yet with the support of Congress, it remains open in spite of the direct order of the Commander in Chief.
The heinous crime resulting in the tragedy in Boston doesn't reframe the question. Justice still is America's greatest asset and our greatest export. One way or the other, we will demonstrate our system of justice in a very real way that will capture the attention of the whole world. The Boston evildoer(s) can be prosecuted in Federal Court and imprisoned in the federal prison system. That would send a powerful message to the world about our values, our strength, and our courage. Or, we can imprison the perpetrator(s) in Gitmo and let them rot there forever. That would send a very different message -- one of fear and retribution.
Gitmo costs the U.S. in many ways. One way and the easiest to quantify is that it costs upwards of $177M per year to maintain, and the Department of Defense has requested almost $200M more to renovate it. $177M is over a million dollars for each of the 166 detainees imprisoned there. There is a basic factual fallacy about Guantanamo B that these 166 men are all very bad guys who deserve whatever they get. That is not true. At most, twenty of the prisoners are accused terrorists who will be tried for war crimes. 86 of the 166 prisoners have been cleared for release. Indeed, they have been cleared for several years now.
The average cost to house a prisoner in a supermax prison in the U.S. is less than $30K. Try to imagine what we could buy with the savings if Gitmo were closed and the 86 detainees already cleared were in fact released, and the remaining prisoners were held in Federal Prison here instead. How many Marines, how many Navy Seals, how many bombs and bullets would those millions of dollars buy? How many veteran=s claims efficiently processed and paid? How many hot lunches for underprivileged school children? It is a terrible waste.
Gitmo also costs the United States dearly in terms of our international reputation. Courts in other countries have declined to render alleged terrorists to U.S. custody for fear they will be tried in military commissions in Guantanamo. Although the facility itself is adequate for a prison, it is largely viewed in the international community as America's gulag. Supermax prisons, from which no one ever escapes, are no weekend spa to be sure, but Gitmo is an avoidable, self-inflicted wound.
As retired Navy officers, we also object to holding alleged terrorists in a military prison. This implies the status of "soldier" which they decidedly do not deserve. If the twenty or so accused terrorists at Guantanamo are guilty of what the prosecution apparently believes they have done, they are simply criminals, not soldiers. We should treat them like alleged criminals, without honor, and not elevate them to a higher, undeserved status.
The time is long past for Gitmo to close. Terrorists are successfully and safely prosecuted in courtrooms around the world including in the U.S. practically every week. What are we afraid of? We clearly want bad men to be prosecuted to the full extent of the law. Gitmo has impeded that effort, not facilitated it. The first step for successful prosecutions is to close Gitmo and bring them here to the United States for prosecution.
The president should appoint a person of unquestioned stature and experience to work within the Administration and Congress to effectuate his long standing Executive Order. No committees, no studies, no more analysis. Appoint someone to get it done.
The authors are former Judge Advocates General of the Navy. Mr. Guter is currently dean of South Texas College of Law/Houston and Mr. Hutson is dean emeritus of University of New Hampshire School of Law.
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