On closing Guantánamo, Paul Lewis, the former Special Envoy for Guantánamo Detention Closure at the Department of Defense under President Obama, recently had an article published on Lawfare, in which he explained why Guantánamo must be closed.
We’re cross-posting the article, “The Continuing Need to Close the Guantánamo Bay Detention Facility,” below, because it largely echoes what we at Close Guantánamo think, and because we believe it contributes to a necessary message to Donald Trump — that his proposals to keep Guantánamo open, and to send new prisoners there, are ill-conceived, unnecessary and counter-productive.
Lewis began by thanking John Bellinger, a former legal adviser to the Bush administration, for an article he had also written for Lawfare, “Guantánamo Redux: Why It was Opened and Why It Should Be Closed (and not Enlarged).” Bellinger did indeed call for Guantánamo’s closure — and it is always significant when officials who served under George W. Bush, rather than Barack Obama, tell home truths to the Republican Party, but in his article he spent rather too much time, to our liking, trying to defend the reasons why Guantánamo was chosen as the site of a prison in the first place, and distorting some realities.
He wrote, for example, that, “Contrary to revisionist histories written by critics of the facility, Guantanamo was not chosen primarily because it was outside the United States and not subject to the jurisdiction of U.S. courts,” although “[t]his was certainly one factor,” whereas we, the alleged “revisionists,” continue to believe that it was indeed chosen primarily to be “Outside the Law,” as the title of the documentary film I co-directed in 2009 declared.
Bellinger also claimed that “[t]he decision to open the detention facility in Guantánamo was not a political decision by senior Bush Administration appointees, but a practical decision based on the analysis and recommendations of career national security officials,” which, again, to our mind, rather rewrites the Bush administration’s role in seeking out a lawless location where torture could be implemented. We recall, for example, that Jim Haynes, the Pentagon’s General Counsel, was actively looking into torture programs, and individuals who would help to implement a specific torture program, in December 2001, a month before Guantánamo opened.
Bellinger also spent considerable time criticizing President Obama for having called Guantánamo “a facility that should never have been opened,” whereas that is exactly right, and we are not convinced that it is useful to claim, as Bellinger also did, that, had Obama been president back in 2001, it is unlikely that his officials “would have made a different decision.”
Where Bellinger is certainly on stronger ground, however, is in his criticism of Donald Trump’s plans. As he stated, “Although it may be politically popular with some of the Administration’s supporters, it would be a mistake for the Trump Administration to try to repopulate Guantánamo with new detainees from the Islamic State or Al Qaida-affiliated groups, as President Trump and Attorney General Sessions have said they want to do. The Trump Administration should learn from the bitter legal and policy experiences of the Bush Administration: adding new detainees to Guantánamo will produce more (and more risky) lawsuits; difficult practical problems down the road as to what to do with the detainees; and unnecessary friction with allies.”
He also noted that, as Jack Goldsmith, Assistant Attorney General at the Office of Legal Counsel from 2003-2004, during the time of the infamous torture memos, has pointed out, “it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF [the Authorization for Use of Military Force, which justifies imprisonment at Guantánamo] does not extend to ISIL.”
As he also explained, Trump and Attorney General Jeff Sessions should seek legislation that would allow the president to “close Guantánamo and transfer the remaining detainees to their own governments and to one or more military and/or federal detention facilities in the United States for continued detention and potential prosecution.” He also states, “President Trump, Attorney General Sessions, Secretaries Mattis and Kelly, CIA Director Pompeo and DNI-designate Coats should consult with the experienced lawyers and policy experts in their departments about the risks of costs and benefits of Guantánamo. They are likely to find that repopulating Guantánamo will produce more costs and risks than benefits and that it would be both preferable, and possible, to achieve President Bush’s goal of closing Guantánamo without compromising security.”
To turn to Paul Lewis’s article, we are delighted to see our three main recommendations for Guantánamo repeated by the former envoy; namely, to “[t]ransfer the 41 remaining detainees at GTMO to a secure military brig or federal detention facility in the United States”; to “[c]ontinue to transfer those detainees … for whom it is safe to do so”; and to “[r]etain the current Periodic Review Board Process.”
We have long called for the remaining prisoners to be moved to the U.S. mainland, where, we believe, they would be able to file new legal challenges, and we also believe that the Periodic Review Boards — the parole type process that we covered assiduously in 2015-16 — should also continue to be allowed to make decisions about releasing prisoners who were formerly — and often disproportionately — described as “too dangerous to release,” as well as making sure that anyone approved for release is actually freed.
Lewis also correctly summarized the primary arguments for closing Guantánamo: “it costs too much, it is a recruiting tool and propaganda tool for terrorists (a conclusion reached by both President Bush and President Obama), and it is disdained by the international community.” As he also noted, “In the best judgement of both Administrations, GTMO hurt us more than it helped us. Both presidents, five secretaries of Defense (Rumsfeld, Gates, Panetta, Hagel, and Carter), and four secretaries of State (Powell, Rice, Clinton, and Kerry) reached the same conclusion. (Yes, even Secretary of Defense Donald Rumsfeld ultimately concluded GTMO should be closed — if an alternative location were selected.)”
The article is below. We hope you have time to read it, and to share this whole article if you find it useful:
The Continuing Need to Close the Guantánamo Bay Detention Facility
By Paul Lewis, Lawfare, March 14, 2017
On Sunday, John Bellinger forcefully summarized the main arguments for closing the detention facility at Guantánamo Bay, Cuba. Having served as the Department of Defense Special Envoy for Guantánamo Detention Closure in the Obama Administration and as Director of the DOD Office of Legislative Counsel at the end of the Bush Administration, I agree with John’s conclusion. While a safe, humane facility, GTMO hurts us more than it helps us. If we want to protect the country, we should close the GTMO detention facility.
We are all familiar with the primary arguments to close GTMO: it costs too much, it is a recruiting tool and propaganda tool for terrorists (a conclusion reached by both President Bush and President Obama), and it is disdained by the international community. But beyond these individual factors, it is crucially important that the national security leadership of both the Bush and Obama Administration reached the same conclusion. In the best judgement of both Administrations, GTMO hurt us more than it helped us. Both presidents, five secretaries of Defense (Rumsfeld, Gates, Panetta, Hagel, and Carter), and four secretaries of State (Powell, Rice, Clinton, and Kerry) reached the same conclusion. (Yes, even Secretary of Defense Donald Rumsfeld ultimately concluded GTMO should be closed — if an alternative location were selected.)
I urge the new Administration to reach the same conclusion. As John states, before bringing new detainees to GTMO, the new Administration would be wise to consult with the bipartisan national security experts from both previous Administrations. This list of experts includes a long list of retired military leaders, including former Marine Commandant, Gen. Charles Krulak and former CENTCOM Commander General Joseph Hoar.
This does not mean the United States should not detain new captures or no longer detain those confined at GTMO who are too dangerous to transfer. Detaining those defined by Congress as terrorists keeps them off the battlefield and allows useful interrogation. The Administration can decide which tool to use for each new detainee: detention, prosecution under Article III courts, prosecution under military commissions, or transfer to a foreign country (the home country or a third country) with adequate security assurances vetted by national security professionals.
With that in mind, here’s my advice to the Trump Administration:
Transfer the 41 remaining detainees at GTMO to a secure military brig or federal detention facility in the United States and remove the issues regarding GTMO that hurt us around the world. It will ultimately cost far less to detain these 41 prisoners in the United States (see the closure plan sent to Congress by the Obama Administration in February 2016)—and our allies, who we need in our counterterrorism efforts around the world, will thank us. Terrorists will probably still decry a new facility, but they won’t have the GTMO baggage to argue. Make sure the new facility is as transparent as possible (the media won’t have to queue for limited space on transport planes) and continue the judicial and administrative review already in place. This won’t convince the enemy, but it takes the issue off the table for the reasonable members of the international community. Also, use this new domestic detention facility for new captures who are not deemed appropriate for federal prosecution.
Continue to transfer those detainees from GTMO or the new facility for whom it is safe to do so. Five detainees at GTMO are currently eligible for transfer if adequate security assurances are obtained. These assurances, as negotiated by the Departments of State and Defense, and reviewed by the Attorney General, the Secretary of Homeland Security — who knows GTMO extremely well from his SOUTHCOM days — the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff, have worked well with most recent transfers. Basically, they require the host nation to be able to monitor the former detainee, deny travel documents, share information with the United States government regarding the former detainee, and rehabilitate or integrate the detainee into the new country.
When in doubt, don’t transfer. But keep in mind that the international community has learned how to do this in the fifteen years since GTMO opened.
Retain the current Periodic Review Board Process. This broad interagency administrative process, conceived by the Obama Administration, addressed the international community’s concern that GTMO was a legal black hole. It followed earlier DOD reviews under the Bush Administration. Both Administrations concluded the continuing threat of detainees needs to be reviewed. At a minimum, even if the Trump Administration concludes that GTMO should stay open and add detainees, it must acknowledge that detention by United States authorities is rarely permanent and the ability to review the continuing threat of detainees with the possibility of safe transfer, must be retained. For these reasons, the Bush Administration transferred over 530 detainees from GTMO and the Obama Administration transferred almost 200 detainees.
Detention is lawful when the United States uses force, but GTMO is not the way to do it.