SAYING THAT THE PRISON at Guantánamo Bay “undermines our standing in the world,” President Barack Obama today announced a detailed plan to close the facility, 14 years after it was first inaugurated by President George W. Bush. Among other measures, the plan calls for a number of Guantánamo prisoners to be transferred into permanent custody in the United States. This component of the government’s plan has alarmed many legal experts, who say that it would create 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,” said 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 praised by civil rights activists are accelerated transfers of detainees already cleared for release and Periodic Review Board hearings for those whose legal status remains unsettled. However, the government’s plan also includes a more troubling proposal: 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 states, adding that 13 unspecified locations had been examined as possible sites for detention of the prisoners.
Significant legal roadblocks remain to moving detainees to U.S. soil, however, thanks to congressional legislation banning such transfers. In a statement released today, House Speaker Paul Ryan denounced Obama’s new plan, claiming that moving the prisoners to the United States would “jeopardize our national security.” Republican presidential candidates have also criticized the plan, 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 remain in the prison, down from a peak of nearly 800. Of those who remain, 35 are currently approved for release and transfer to a third-party country. Many have been awaiting transfer since 2009. The administration’s plan would release these men quickly while identifying more who may be eligible for clearance. It would also wind down the prison population to a smaller number of detainees who would likely never be approved for release. These “forever prisoners” would make up the population of the future prison facility somewhere 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,” said Naureen Shah, director of the Security and Human Rights Program at Amnesty International.
Obama’s plan for closing the prison also preserves the Bush-era practice of trying prisoners under military commissions rather than through civilian courts. Such commissions have been widely criticized as unconstitutional, as well as ineffective at securing convictions.
In a particularly cruel irony, prisoners who were tortured during their detention are unable to obtain due process because the evidence against them was legally tainted by their abuse. The administration’s plan would continue to bar such prisoners from the civilian legal process, something the ACLU described in a statement today as a “mistake” in an otherwise well-intentioned plan 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,” said 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.”
Making indefinite detention without charge an accepted practice in the United States could also open the door 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.”
First came the Never Trumpers, and I did not speak out, because they stood against Donald Trump. Then came the Lincoln Project, and I did not speak out, because their videos went viral. Then came the Chamber of Commerce, and by then it was too late.