Don’t
Close Guantánamo
By
JENNIFER DASKAL Published: January 10,
2013
IN
2010, I was branded a member of the “Al Qaeda 7” — a notorious label attached
to Department of Justice lawyers who were mocked by critics claiming they had “flocked
to Guantánamo to take
up the cause of the terrorists.” My crime: I advocated for the closure of the
detention facility — a position that has also been taken up by the likes of
former President George W. Bush, former Secretary of Defense Robert M. Gates
and former Secretary of State Colin L. Powell — and for more humane living
conditions for those imprisoned there.
At
the time, I reacted defensively. I was indignant. I insisted on the legitimacy
of my convictions. But even then the writing was on the wall. For a core group
of detainees, closing Guantánamo would
not mean release or prosecution, as most human rights and civil liberties
groups have long advocated. Rather, it
would mean relocation to the United States, or elsewhere, for continued
detention.
Now,
almost four years later, I have changed my mind. Despite recognizing the many
policy imperatives in favor of closure, despite the bipartisan support for this
position, and despite the fact that 166 men still
languish there, I now believe that
Guantánamo should stay open — at least for the short term.
While
I have been slow to come to this realization, the signs have been evident for
some time. Three years ago, Barack Obama’s administration conducted a
comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners
couldn’t be prosecuted, but were too dangerous to be transferred or released.
They are still being held under rules of war that allow detention without
charge for the duration of hostilities.
Others
happened to hail from Yemen. Although many of them were cleared for transfer, the
transfers were put on indefinite hold because of instability in Yemen, the
fear that some might join Al Qaeda forces, and Yemen’s inability to put
adequate security measures in place.
While
the specific numbers have most likely shifted over time, the basic categories
persist. These are men whom the current administration will not transfer,
release or prosecute, so long as the legal authority to detain, pursuant to the
law of war, endures.
President
Obama raised the hopes of the human rights community when during his
re-election campaign he once again said the detention center should be closed.
But it was not clear whether he had a viable plan, and any such plan would
almost certainly involve moving many of the detainees into continued detention
in the United States, where their living conditions would almost certainly
deteriorate.
Guantánamo
in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on
the facility by human rights groups, international observers and detainees’
lawyers, there has been a significant, if not
uniform, improvement in conditions.
The
majority of Guantánamo detainees now live in communal facilities where they
can eat, pray and exercise together. If moved to the United States,
these same men would most likely be held in military detention in
conditions akin to supermax prisons — confined to their cells 22
hours a day and prohibited from engaging in group activities, including
communal prayer. The hard-won improvements in conditions would be ratcheted
back half a decade to their previous level of harshness.
And
Guantánamo would no longer be that failed experiment on an island many miles
away. The Obama administration would be affirmatively creating a new system of
detention without charge for terrorism suspects on American soil, setting a
precedent and creating a facility readily available to future presidents
wanting to rid themselves of a range of potentially dangerous actors.
The
political reality is that closure of Guantánamo is unlikely to happen anytime
soon, and if it did, it would do more harm than good. We should instead focus
on finding places to transfer those cleared to leave the facility and, more
important, on defining the end to the war.
In
a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a
future “tipping point”
at which Al Qaeda would be so decimated
that the armed conflict
would be deemed over. Statements from high level officials suggest that
this point may be near. And as the United States pulls out of Afghanistan,
there is an increasingly strong argument that the war against Al Qaeda is
coming to a close. With the end of the conflict, the legal justification for
the detentions will finally disappear.
At
that point, the remaining men in Guantánamo can no longer be held without
charge, at least not without running afoul of basic constitutional and
international law prohibitions. Only then is there a realistic hope for
meaningful closure, not by recreating a prison in the United States but through
the arduous process of transferring, releasing or prosecuting the detainees
left there.
In
the meantime, we should keep Guantánamo open.
Jennifer
Daskal is a fellow and adjunct professor at Georgetown Law Center. She
has served as counsel to the assistant attorney general for national security
at the Department of Justice and as senior counterterrorism counsel at Human
Rights Watch. (
