Workable way forward for Guantanamo

Though this is an important amendment that deserves careful consideration by the House, it’s not the only option for progress on closing the facility. Rep. Buck McKeon (R-Calif.) has rightly noted that President Obama already has the authority to transfer many of the 86 detainees who already have been cleared for release by the intelligence and defense agencies. However, despite the administration’s ability to make progress without Congress, there are additional questions that the House and Senate will have to resolve if the detention center is to close. Smith’s proposal would help resolve those questions by:
 
(1)   removing all restrictions on transferring detainees out of Guantanamo, making it easier to prosecute some in federal courts or send them home if cleared for release;
 
(2)   striking a request for $247 million for construction at Guantanamo and prohibiting the use of any funds on Guantanamo after 2014, recognizing that the facility is closing;
 
(3)   requiring that the periodic review boards, which could determine whether some of the 46 detainees being held indefinitely could now be cleared for release, be completed within 60 days of enactment of the defense bill;
 
(4)   mandating the production of a variety of reports designed to push the administration to produce a plan to close Guantanamo;
 
(5)   enhancing the role and responsibilities of the senior Pentagon Guantanamo envoy to ensure that transfers are made consistent with security requirements; and
 
(6)   establishing reporting requirements prior to transferring detainees.
 
There will be some who argue that these requirements are too onerous and infringe on the President’s constitutional authorities in national security.  Others will argue that the proposal changes nothing to the extent it moves Guantanamo to the United States without resolving the underlying policies that have given Guantanamo and the United States a black eye. But Smith’s proposal at the very least initiates an important conversation and addresses a concern expressed by Members of Congress about wanting a comprehensive solution to Guantanamo. At a time when it’s been years since Congress has had a serious conversation about Guantanamo, this amendment demonstrates progress and a renewed interest in closing the expensive and troublesome facility.
 
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That’s a sentiment echoed today by a coalition of 25 retired generals and admirals who released a letter in support of the Smith amendment.  The group said, “We cannot fathom any rational argument that favors spending more than $1,500,000 per detainee [at Guantanamo] compared to the $34,000 it costs to incarcerate prisoners at a high security federal facility.”   
 
The group of retired generals and admirals went on to argue “If we are to make America more secure against disparate and diffuse terrorist threats around the globe, we must win with our values, and we must support other nations in taking responsibility for threats within their borders.  The United States must close Guantanamo as part of a comprehensive counterterrorism strategy.”
 
This debate will soon move on to the Senate, where the Senate Armed Services Committee is currently marking up its own defense bill. The Senate defense bill is expected to come to the floor for a vote as early as July. Many will be watching this legislation closely to see if it reflects a renewed bipartisan and inter-branch commitment to reach a compromise on Guantanamo, a perception strengthened last week as Sens. John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.) joined White House Chief of Staff Denis McDonough on a trip to Guantanamo to assess how to close the prison.
 
The urgency to come to resolution on Guantanamo comes amidst a hunger strike by 104 of the 166 detainees at the prison.  In addition, two federal appellate courts have overturned convictions by military commissions, throwing doubt on to the viability of the commissions.  The credibility of military commissions has been cast into further doubt by a series of embarrassing incidents in which the CIA, unbeknownst to the presiding judge, was listening into court proceedings and hit a noise button to censor the trial.  Shortly thereafter, revelations came that the government had turned over attorney client communications from defense counsel to the prosecution.  This week, the military commission trial of al-Nashiri, a defendant in the bombing of the USS Cole is proceeding, but the judge has yet to rule whether the constitution is applicable in the case. 
 
Ultimately, Guantanamo is not about who the enemy is, but who we are as a nation.  We are a nation of laws, and we lead by example.  Coming to an agreement on how to close Guantanamo makes economic, moral and national security sense. Though adopting Representatives Smith’s amendment would be a positive step in that direction, it’s not the end game. 

Dixon Osburn is director of Human Rights First’s Law & Security Program.