ANNOUNCING THAT THE PRISON at Guantánamo Bay “undermines our standing in the world,” President Barack Obama today launched a in depth strategy to shut down the facility, 14 years after it was first inaugurated by President George W. Bush. Among other measures, the approach calls for a number of Guantánamo prisoners to be relocated into permanent custody in the United States. This component of the government’s approach has alarmed many legal experts, who point out that it would set up a dangerous precedent for indefinite detention without trial in the United States.
“The infamy of Guantánamo has never been its physical location but the illegal regime of indefinite detention without charge that underpins it,” stated Omar Shakir, a lawyer with the Center for Constitutional Rights. “The administration’s proposal contains a number of measures that we have long advocated. But importing indefinite detention to the United States is not a plan to ‘close Guantánamo.’ It’s a plan to move Guantánamo to another ZIP code.”
Among the measures highly regarded by civil rights activists are accelerated transfers of detainees already approved for release and Periodic Review Board hearings for those whose legal status continues to be unsettled. Nevertheless, the government’s approach also incorporates a more troubling proposition: to relocate and indefinitely detain a number of prisoners in the United States, either in existing prisons or in a new one constructed specifically to house them.
“The Department of Defense determined that, with modifications, a variety of Department of Defense, Bureau of Prisons, and state prison facilities could safely, securely, and humanely house Guantánamo detainees for the purpose of military commissions and continued law of war detention,” the document suggests, adding that 13 unspecified locations had been examined as possible sites for detention of the prisoners.
Considerable legal roadblocks continue to be to moving detainees to U.S. soil, nevertheless, because of congressional legislation banning such transfers. In a statement introduced today, House Speaker Paul Ryan denounced Obama’s new approach, claiming that moving the prisoners to the United States would “jeopardize our national security.” Republican presidential candidates have also belittled the approach, with Florida Sen. Marco Rubio vowing, “Not only are we not going to close Guantánamo, if we capture a terrorist alive, they are going to Guantánamo and we are going to find out everything they know.”
Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, called on Congress to drop its opposition to closing the prison, describing the restrictions on detainee transfers to the U.S. as “unnecessary and counterproductive.”
Currently, 91 prisoners continue being in the prison, down from a maximum of nearly 800. Of those who continue to be, 35 are at the moment approved for release and transfer to a third-party country. Many have been waiting for transfer since 2009. The administration’s approach would release these men quickly while identifying more who may be suitable for clearance. It would also wind down the prison population to a smaller number of detainees who would in all likelihood never be approved for release. These “forever prisoners” would make up the population of the future prison facility someplace in the United States.
“While it is gratifying to see President Obama committing to close the prison and transfer out more detainees, the proposal to bring detainees to the United States for indefinite detention without charge is dangerous,” stated Naureen Shah, director of the Security and Human Rights Program at Amnesty International.
Obama’s strategy for closing the prison also preserves the Bush-era practice of trying prisoners under military commissions instead of through civilian courts. Such commissions have been broadly criticized as unconstitutional, as well as unproductive at securing convictions.
In a specifically vicious paradox, prisoners who were tortured during their detention are not able to acquire due process because the proof against them was legally tainted by their abuse. The administration’s strategy would continue to bar such prisoners from the civilian legal process, something the ACLU referred to in a statement today as a “mistake” in an otherwise well-intentioned approach to shut the prison.
“While the administration’s plan contains a number of laudable steps, the legal blueprint for detaining these men in the United States sets a dangerous precedent for others a future administration may deem terrorists,” stated Shakir. “We have already seen significant due process violations and abuses in the handling of these cases, with people being subjected to torture and imprisonment for years without charge. Creating a legal regime to justify indefinite detention would create grave dangers for future individuals or groups detained in a U.S. context.”
Doing indefinite detention without charge an approved process in the United States could also open the doorway to more radical legal measures in the future.
“The Obama administration is embracing, in some ways, a paradigm created by Bush. When public officials in multiple administrations endorse the position that you can hold someone in jail without charge until they die, that makes it the new normal, and such measures would be less extreme for a future president,” said Shah. “It reduces this country’s resistance to the idea of national security detention and even measures like internment. Given the climate of anti-Muslim hate we’re seeing today, from a legal perspective we’re only a few short steps away from seeing an administration take such extreme measures on national security grounds.”