Why Guantanamo won’t (and probably shouldn’t) close

Recently my friends John Bellinger and Paul Lewis became the latest Washington policy devotees to advocate the closing of Guantanamo (GITMO).  While they make excellent arguments, there are some key points with which I must disagree.

John’s piece (“Guantanamo Redux: Why It was Opened and Why It Should Be Closed (and not enlarged)”) is important because he clears up some misconceptions about GITMO.  Among other things, he contends that the designation of GITMO as a detention facility after 9/11 was “not an initiative of the Bush White House,” and “was not chosen primarily because it was outside the United States and not subject to the jurisdiction of U.S. courts.”

Essentially, John argues that sixteen years ago when the decision was made to house suspected Taliban and Al-Qaida members at GITMO, it was the most practical and readily-available alternative (even as he does not endorse “every aspect of the Guantanamo detention program” that took place over the years).  Interestingly, he says (and I tend to agree) that he is “not convinced that Obama Administration officials—without the benefit of hindsight—would have made a different decision in 2001.”

Another fascinating point John makes (which was new to me) was this:

[F]ederal criminal law did not apply extraterritorially in 2001 to acts of material support to terrorism committed outside the United States by non-US nationals, so it is not clear whether any Taliban or al Qaida detainees could have prosecuted for federal crimes unless they had actually engaged in acts of terrorism.

That loophole has now been closed, but – still – why transfer the forty-one remaining detainees now?

John seems to rely upon George W. Bush’s statement from seven years ago that “the detention facility had become a propaganda tool for our enemies and a distraction for our allies.”  As to adding law-of-war detainees from current conflicts who might be captured by U.S. forces, John fears more litigation – mainly associated with the scope of the Authorization to Use Military Force (AUMF).  He believes that adding detainees will “likely…produce more costs and risks than benefits.”

In Paul’s essay (“The Continuing Need to Close the Guantanamo Bay Detention Facility”) he simply claims that while GITMO is a “safe, humane facility” it nevertheless “hurts us more than it helps us.”  He also asserts that GITMO is a “recruiting and propaganda tool for terrorists.”  Paul wants GITMO closed, and the remaining detainees brought to U.S. soil.

Let me be clear, I don’t support the current legislation which bars the transfer of Guantanamo detainees to the US, but not because I advocate such a move.  Rather, I believe the law impermissibly infringes upon the President’s authority under the Constitution as Commander-in-Chief, as well as the Executive branch’s prosecutorial powers.

Along these lines, I’ve long believed that the General Accountability Office’s (GAO) opinion declaring illegal President Obama’s detainee release in exchange for Sgt Bowe Bergdahl was itself deeply-flawed. Why?  Apparently, for policy reasons the GAO never addressed the constitutionality of the law it was interpreting.  This is an issue that just can’t be properly evaluated without the consideration of constitutional issues.

Apart from whatever authority Congress might have to block transfers to U.S. soil, that does not necessarily extend to actions such as prisoner exchanges that are an incident of the President’s Article II authority as Commander-in-Chief.  Given that prisoner exchanges have been a common incident of command authority throughout U.S. history, no competent legal opinion can be rendered without consideration of the Steel Seizure case and other interpretations of the President’s inherent authorities under the Constitution.  (Query: if for policy – or any other reason – a lawyer cannot discuss obviously relevant legal authority in an opinion, how can it really be competent legal advice as professional responsibility standards require?)

Having said that, let me suggest why closing GITMO is not in the cards, and shouldn’t be.  In a democracy, the will of the people matters.  In that regard, virtually every poll has shown that Americans by a significant majority want the facility to continue to operate.

Furthermore, to my knowledge, there is no Congressional district anywhere that wants to be home to a stateside facility for GITMO detainees.  Even in Colorado – which hosts America’s supermax prison, Administrative Maximum Facility (ADX) Florence – the locals don’t want the GITMO detainees, and Colorado’s Democratic governor, John Hickenlooper, backs them.  The Washington Times reported in 2016:

“The reports we’ve gotten over the last couple months is the people are fairly united — they don’t want to take that risk,” Mr. Hickenlooper said at a press gathering, according to The Denver Post. “I respect that.”

Advocates argue that the risk is overstated as no terrorist has escaped a stateside high-security prison. But the fact is that very dangerous people have escaped some of the of world’s most secure prisons. And America is not exempt: recall the two murders who in 2015 escaped the Clinton Correctional Facility at Dannemora – New York’s most secure prison.  They managed not only to find a way out, but also to elude an extensive manhunt for nearly three weeks.

In April the New York Times reported the deep impact of the escape even on a community that “had grown accustomed to living in the shadow of a maximum-security prison.”  The Times says:

But the escape changed all of that, upending life for weeks. Helicopters hovered overhead, shaking the walls of houses. State Police officers searched backyards. These days, locking doors has become a habit. Ms. Leduc [a local resident] said she started carrying bear mace.

“The sting is off, but you’re never not looking behind you,” she said. “It changed us.”

As frightening as the ordeal of a pair of escaped murderers may have been, one can easily imagine why a community would not want to house dozens of detainees with connections to global terrorist organizations with thousands of adherents.

And it isn’t just the escape threat that could raise concerns.  Virtually anywhere in the U.S. where the detainees could be located will be vastly more accessible than GITMO.  It surely become a site of endless protests by activists and opponents of U.S. policies.  The constant disruption – not to mention cost – would become permanent feature that locals would have to endure ad infinitum.

Cost is often raised as a reason to close Guantanamo.  Actually, there are no cost estimates based on the current population of just forty-one detainees.  Nevertheless, there are – and have been – unnecessary expenditures at GITMO that have upped the detention bill, but the reality is that the naval station will remain open with or without the detention facility.  The primary mission of that facility is not detention operations.  Here’s how it describes itself:

Mission Pillars

Presence:

Maintain U.S. treaty obligations.

Maintain a naval base for refueling ships.

Maintain the fence line surrounding the base and the international shipping channel through Guantanamo Bay.

Maintain a forward presence near the Windward Passage to the Caribbean. 

Contingency Logistics:

Maintain port facilities, naval airfield and staging areas on the base in support of U.S. contingency operations in the Caribbean. 

Logistic Support:

Provide logistic support to ships and aircraft conducting counter-drug operations in the Caribbean.

Provide logistic support to Joint Task Force Operations in the Caribbean. 

Migrant Operations:

Conduct steady state operations to accommodate migrants at the base.

To conduct contingency Migrant Ops and to support migrant surge ops.

All of those missions will – and must – continue.  Unless the U.S. is willing to write off the Caribbean (and, really, much of South America), there is no prospect of closing Naval Station Guantanamo anytime soon.

Is GITMO a “recruiting tool” for terrorists as so many contend?  In a 2015 study (“Is Guantanamo Really a Major Recruiting Tool for Jihadists?”) Cody M. Poplin and Sebastian Brady concluded that “Guantanamo has never played a big role in any terrorist group’s propaganda compared to the issues that really animate those groups.”  They added:

Accordingly, it is hardly clear that Guantanamo’s closure would matter much, so far as concerns the contents of jihadist propaganda. U.S. detention operations at Bagram and Abu Ghraib, after all, are now in the past—but that hasn’t persuaded jihadis to drop their invocations of both prisons in their online literature.

Perhaps most saliently, they reiterated:

Our final conclusion is a commonsensical one, which our research seemed to underscore: Shuttering Guantanamo may not eliminate, or even reduce, the camp’s place in terrorist propaganda…. As with Abu Ghraib, so too with Guantanamo: With respect to the contents of terrorist materials, what matters is not so much that Guantanamo does or does not continue to operate, but that it existed in the first place.

But would closing GITMO help us with our allies?  It’s hard to see how.  In my view, what Poplin and Brady said in their report is also relevant here. That is, for those opposed to U.S. policies “what matters is not so much that Guantanamo does or does not continue to operate, but that it existed in the first place.”  How would relocating detainees to a stateside prison suddenly change minds in a meaningful way?

Let’s not forget what former Secretary of Defense Robert Gates said in 2010 shortly after the WikiLeaks revealed a trove of classified U.S. government documents:

The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. Many governments — some governments — deal with us because they fear us, some because they respect us, most because they need us. We are still essentially, as has been said before, the indispensable nation.

I don’t always agree with Secretary Gates, but I think he is dead on with that observation.  I defy anyone to produce data that demonstrates that our allies (or any country) would change their policies towards the U.S. in any significantly positive way simply because of relocating detainees from what Paul describes as a “safe and humane” location to a stateside maximum security facility.

In fact, as I’ve indicated before, my bet is that given the tougher conditions at U.S. high-security civilian faciities, it won’t be long before the detainees, their advocates, and perhaps even our allies, are howling about their treatment.

I do agree with John that sending additional detainees to GITMO will generate protests and, of course, litigation.  The fact that the location would be GITMO would give those objections more cachet, but the reality is that wherever the U.S. locates detainees will be subject to litigation, particularly with respect to the issue of the scope of the AUMF that John identifies.

Sure,  we ought to have a new AUMF even if a plausible case as to the legality of current operations can be made based on the President’s inherent Article II authorities.  The process of updating the AUMF would have important ancillary benefits: after nearly sixteen years of conflict we should have a wide-ranging national discussion as to the ongoing conflict against terrorists.

Of course, re-examining how to best handle security detainees obviously needs to be part of that dialogue.  However, we also must cautious about actions that have real potential for adverse, unintended consequences.  Prematurely closing GITMO is in that category; we shouldn’t assume it would necessarily be helpful – let alone a panacea – especially since so many Americans from across the political spectrum are so opposed.