In recent days, Republican politicians running for reelection have once again turned to stoking public fears about the President's plan to close the detention facility at Guantánamo Bay, Cuba. Early last week, Illinois Senator Mark Kirk and New Hampshire Senator Kelly Ayottte proposed legislation that would make it harder than it already is for the administration to reduce the current prison population.
Meanwhile, the Republican presidential candidates are leading a chorus not only to keep the Guantánamo detention camp open, but to increase its population with terrorists captured in ongoing wars, as if Guantánamo has been a resounding success.
The continuing Republican intransigence leaves the President with an unpalatable choice not so different from the "nuclear option" he resorted to on immigration: he can renege on a near sacred campaign pledge or issue an executive order closing the Guantánamo prison using discretionary funds. Of course, doing so would burn bridges already aflame.
Which does not mean that closing Guantánamo by executive order is the wrong thing to do. There is a moral as well as a political calculus here, and the administration is mulling it over at this very moment, though it is not obvious that the president is in sole possession of the moral high ground.
In the interest of encouraging as many people as possible to weigh in on this debate, it might be useful to clear up a few misconceptions about the Guantánamo detention facility that impede rational discussion:
1) that Guantánamo is a better place to hold and prosecute alleged terrorists than U.S. federal court.
2) that detainees slated for indefinite law-of-war detention would join a population of federal convicts at a supermax facility (most likely in Leavenworth, KA, or Florence, CO), potentially overwhelming the ability of Federal Bureau of Prison guards to maintain safety.
3) that repatriating Guantánamo detainees to their countries of origin promotes recidivism by returning what Senator Lindsay Graham is wont to call "killers" and "crazy bastards" to the battlefield.
None of this is true.
First, no matter how many times the Guantánamo military commissions have been revamped, their reliance on hearsay evidence and ex post facto law, and their setting aside of the sixth amendment safeguard of confrontation, among other defects, ensures that guilty verdicts will be mired in protracted review.
In the case exemplifying the supposed inability of the federal court system to handle terrorist crimes, Ahmed Khalfan Ghailani, the alleged planner of the 1998 east Africa embassy attacks, was given a life sentence, while Salim Hamdam, tried at Guantánamo in 2008, just before newly elected President Obama shut the Guantánamo commissions down, was given five months in addition to time already served (the charges on which the two were convicted were the same: material support for terrorism, or conspiracy). The longest sentence handed down at Guantánamo is nine months, to Australian David Hicks.
Second, the Obama administration is not proposing to dump Guantánamo detainees in federal prison but to essentially move Guantánamo north. This would be a Pentagon operation located at or adjacent to a federal prison and run by the Joint Task Force (JTF) not by the Federal Bureau of Prisons. On, for example, federal land in the desert outside Florence, CO, there is little doubt that the JTF could run a detention facility safely. The idea that it could not do so is fear mongering.
In making an economic case for moving the detention facility stateside, advocates compare the roughly $2.8 million dollars per year that it costs to house detainees in Guantánamo to the roughly $78 thousand dollars it costs to house a federal prisoner in a supermax facility. But that, too, is a false comparison as, again, Guantánamo north would be run by the JTF not the Federal Bureau of Prisons. The Pentagon has not provided a cost estimate. The savings will not be $2 million dollars per detainee per year, but it will be considerable as Guantánamo Bay Cuba is the most costly, inconvenient, and ill-conceived location for a detention camp imaginable, as military and detention professionals argued before the camp was even opened.
Third, you can't have REcidivism without a person first having been convicted of something. Not one of the detainees repatriated over the last dozen or so years was convicted of anything. Most were not picked up on battlefields and were held on the authority of thoroughly discredited evidence. Ten of the 59 detainees that the administration wants to move to the United States have been charged in military commissions. Three of these ten have been convicted. These three convictions are being appealed and are likely to be overturned.
Yes, some of the detainees are genuine terrorists. But to repeat, the United States has successfully prosecuted terrorists in federal court and is now (safely) detaining convicted terrorists in federal prison.
Yes, there is evidence that some repatriated detainees have taken up arms against the United States. But this may reveal nothing more than the fact that individuals tortured and abused by the United States are likely to become its enemy. This was precisely the argument against the detention camp made by former General Barry McCaffrey, who once called Guantánamo "a graduate school for terrorists."
Whether the president should create Guantánamo north is another issue. If indefinite detention on 45 square miles of Cuban soil is bad for America's reputation, it is all the more awkward on American soil.
Over the course of the next several weeks, Congress will continue to debate some straightforward questions that have been clouded by deliberate obfuscation:
Where is the best place to try alleged perpetrators of 9/11, in deeply flawed, likely unconstitutional, military commissions at Guantánamo? Or in U.S. federal court, where the Justice Department has a record of successful conviction and detention?
How can we best erode terrorist enlistment? By letting detainees languish in Guantánamo un-convicted and uncharged? Of by shuttering this notorious symbol of torture and abuse?
How can we once and for all demonstrate our adherence to the rule of law? By holding those we can't charge in indefinite detention at home or abroad? Or by releasing them as our own laws demand?
In short, the solution to the vexing moral, legal and logistical problems of Guantánamo is not to move it north but to shutter it entirely. Then and only then can we rectify a more enduring blot on the nation's global reputation -- our ongoing occupation of Guantánamo Bay -- by returning Guantánamo to Cuba.