A fresh start on Guantanamo

Renewed debate over the path forward on Guantanamo is timely. The planned withdrawal of U.S. combat troops from Afghanistan in 2014 could signal the end of the conflict that serves as the government’s legal basis for detaining individuals at Guantanamo.  The United States must therefore determine a lawful disposition for each of the remaining detainees, as it has done in all prior wars.

The majority of detainees, 86 out of the remaining 166 men, have been cleared for transfer, but remain stuck at the facility because of onerous transfer restrictions imposed by Congress and an unwillingness by the administration to waive those restrictions.

The extraordinary cost of Guantanamo in the face of budget austerity makes reconsideration of Guantanamo timely.    It costs taxpayers nearly $1.6 million per prisoner at Guantanamo each year compared to $34,000 per prisoner annually at comparable Bureau of Prisons facilities, prisons a Government Accountability Office study found are capable of holding Guantanamo detainees. General John Kelly recently testified that the fixed cost of Guantanamo means that sequestration forces him to cut other military priorities.

Increased bipartisan willingness to tackle Guantanamo during the past several months could also lead more members of Congress to rethink their positions.  Sen. John McCain (R-Ariz.) traveled with Sen. Diane Feinstein (D-Calif.) and White House Chief of Staff Denis McDonough to Guantanamo and pledged that it was time to close the prison.

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Some in Congress are concerned about moving forward because they believe that there is no comprehensive plan to close the prison, but there is.  In 2010, the Guantanamo Review Task Force outlined a comprehensive framework that remains relevant today, though the administration should be clear on how it will pertain to the remaining detainees. 

The administration should transfer the 86 detainees who have been cleared for transfer.  It should not prosecute any individuals in military commissions where there aren’t clear allegations of internationally-recognized war crimes.   Our federal courts recently ruled that the two chief crimes being charged at Guantanamo – material support and conspiracy – were not internationally recognized war crimes at the time of offense and therefore could not be tried before a military tribunal.  But those crimes could be charged in federal court, giving new reason for Congress to end the restriction on transferring detainees to the United States for prosecution.

The remaining 46 detainees must be repatriated or resettled at the end of hostilities, unless the United States makes another determination before then.  Ten of those 46 detainees are Afghani and are likely to be part of any final agreement with the government of Afghanistan or the Taliban as the U.S. withdraws troops.  Others may be cleared for transfer by a new review board set to start soon because they no longer pose a significant security threat to the United States.  For some detainees, the political situation in their home country may have changed, their networks may have been degraded, their health may have deteriorated or there may be new evidence – all factors to warrant transfer now.

A second concern expressed about releasing the Guantanamo detainees is fear that one or more may try to harm Americans in the future.  It is a legitimate fear, but in America, we do not deprive men of liberty based on abstract fears about possible future wrongdoing.  A security review is conducted prior to clearing any detainee for transfer and the release of any detainee will be accompanied by security assurances from the receiving nation, including rehabilitation programs and monitoring where appropriate.

The Senate Armed Services Committee has provided a path forward on Guantanamo in its annual defense bill which the full Senate likely will consider after the August recess.  The bill removes the restrictions on transferring detainees to the United States for prosecution, incarceration or medical treatment.  The bill also permits the resettlement or repatriation of cleared detainees to other countries so long as the Secretary of Defense takes steps to mitigate the risks and consults with Congress.  The House defense bill, on the other hand, preserves the unsustainable status quo at Guantanamo and obstructs efforts to finally resolve the issue.  There are likely some Senators who will make similar efforts to obstruct progress once the bill hits the Senate floor.

More than 50 retired generals and admirals, including General Colin Powell and Admiral Mike Mullen, have said that Guantanamo should close.   Now is the time for Congress to take their advice and finally tackle the issue.

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