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How to Close Guantánamo

For almost 14 years, the United States' military prison camp in Guantánamo Bay, Cuba, has sat festering on the edge of the Caribbean and the Constitution. Opened by President George W. Bush in the panicky months after the Sept. 11 attacks, the detention center has had a powerful radicalizing effect, has severely tarnished America's standing as a nation of laws and has cost taxpayers more than $5.2 billion.

This travesty could and should have ended years ago. But Congress has gone to great lengths to keep the prison open. Within the executive branch, agencies have sometimes worked at cross-purposes and at times dragged their feet. In the end, however, the buck stops with the president.

President Obama made closing Guantánamo a central promise of his first campaign for the White House. But it remains unfulfilled because of his team's political misjudgments, dogged opposition in Congress and his failure to use his authority more aggressively. Mr. Obama has just over a year left to fulfill his pledge. The goal remains daunting, but it is not impossible.

The White House and the Pentagon will soon present to Congress a detailed plan for closing the prison. It will involve a ramping up of releases of those who have been cleared to leave and the transfer of the rest to prisons or military facilities in the United States. This proposal represents the best chance of breaking the political and bureaucratic logjams that have kept Guantánamo open.

As of Friday, 115 detainees remain. Nearly half -- 53 men -- have been cleared for release. The remaining prisoners include 10 who have been convicted in military tribunals or have cases before them, and 52 who have never been charged with a crime but for whom there is currently no path to freedom or due process.

"And it's not sustainable," as Mr. Obama said of the prison camp in 2013, in a nice bit of understatement. "The idea that we would still maintain forever a group of individuals who have not been tried -- that is contrary to who we are, it is contrary to our interests, and it needs to stop."

Cleared but Not Released

A team of national security officials from six government agencies, including the Pentagon, the State Department and the Office of the Director of National Intelligence, has concluded that 53 of the men at Guantánamo should be released if the government finds countries willing to take them. In many instances, those determinations were made years ago.

The government offers two dubious excuses for those detainees' continued detention. One is that more than 80 percent of the cleared detainees are Yemenis who cannot be safely repatriated to a homeland roiled by war. In fact, many countries have stepped forward to offer to take in cleared detainees, including Yemenis.

The other is that by law, the secretary of defense, Ashton Carter, must personally determine that the threat posed by each new release can be managed. The Pentagon chief may well fear shouldering the blame if a released detainee is later involved in terrorist activity -- and that was certainly part of the motivation for enacting that requirement. But this does not excuse the sluggish pace with which he and the previous secretary acted.

Calling Guantánamo a "rallying cry for jihadi propaganda," Mr. Carter pledged last month to move swiftly to shut it down. Yet, as of Friday, only seven prisoners had been released since he took office in February. His predecessor, Chuck Hagel, who was forced out of the job partly because White House officials felt he was dragging his feet on Guantánamo, approved 44 releases in two years. Mr. Obama must insist that Mr. Carter move faster.

In the meantime, there is another option for reducing the detainee population. Many detainees cleared for release have filed petitions for habeas corpus, demanding that the government explain why it is still holding them. In every case, the Justice Department has automatically opposed the petition. If Mr. Obama ordered the department to stop doing that, a federal judge could immediately release the detainees to a willing country, without requiring the defense secretary's signoff.

'Forever Prisoners'

The bulk of the rest of the detainees, 52 men, are known informally as "forever prisoners," held in legal limbo, neither charged with a crime nor cleared for release. Some have been at Guantánamo since it opened in 2002.

The government team that reviews inmates for release continues to consider cases; most recently, in August, it cleared Omar Khalif Mohammed, a Libyan held at Guantánamo since 2002.

But the process continues at a trickle. If Guantánamo is to be closed in the next year, reviews for all the men need to be accelerated dramatically.

Within this group, as many as two dozen detainees are prepared to plead guilty in federal court to crimes such as conspiracy or material support for terrorism, according to the Center for Constitutional Rights, a legal group that currently represents 11 detainees.

In the end, there will be a small number of detainees who will not be charged but who the government says are "too dangerous" to release. The government intends to continue holding them indefinitely as "enemy combatants," relying on the legal authorizations Congress passed for the wars in Iraq and Afghanistan. This is unacceptable in a country that often lectures other governments for imprisoning people without due process. If the government is unwilling to prosecute these men, it must release them.

Tried by Military Tribunals

Of the 780 men who have been held at Guantánamo since 2002, only eight have been convicted by military commissions. And courts have already vacated at least four of those convictions.

Currently, seven prisoners are being prosecuted by the military commissions, including Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks. But those prosecutions have dragged on for years, with no end in sight.

The military commissions are a legal farce and a practical failure. If the government wants to prosecute detainees, there is a well-established system in place: the United States federal courts. In contrast to the feckless commissions, federal prosecutors have won convictions in roughly 200 terrorism cases since the Sept. 11 attacks, including that of a former Guantánamo detainee, Ahmed Khalfan Ghailani, who was sentenced to life in prison for his role in the 1998 bombing of American embassies in Africa.

A plan to prosecute Mr. Mohammed in federal court in New York City in 2011 fell apart when grandstanding politicians capitalized on the administration's poor handling of it, sabotaging the clearest path to holding Mr. Mohammed accountable for the terror attacks in a fair proceeding. Of course, any evidence that had been gained through Mr. Mohammed's torture at a C.I.A. "black site" would have been inadmissible. But Mr. Obama and former Attorney General Eric Holder Jr. were confident that they had enough other evidence to make their case.

Four years later, rather than serving a life sentence without parole in a maximum-security prison, Mr. Mohammed and the other Sept. 11 defendants remain stuck in pretrial proceedings at Guantánamo.

Republican lawmakers have stood in the way of closing the prison since 2010 by passing legislation that bars the administration from transferring detainees to the United States. They have played on public fears, even though the detainees could be held securely in federal prisons at a tiny fraction of the $3.3 million a year it costs to hold an inmate at Guantánamo.

Senator John McCain, the head of the Senate Armed Services Committee, said in a statement that he was committed to helping the administration shut down the prison if Congress received a "comprehensive plan" that covered Guantánamo and broader detainee policy for suspected terrorists the government may capture in the future.

The strongest opposition remains in the House, where many Republicans have argued that the United States needs the ability to detain accused terrorists indefinitely. As the Pentagon has begun studying potential sites to detain Guantánamo prisoners in the United States, local politicians have protested, preposterously claiming that their presence would jeopardize public safety.

It is long past time for this nonsense to end. The Guantánamo prison camp is the most potent symbol of a disgraceful era of American history. Many people bear responsibility for its creation and its continued operation, but only one man has the power to generate the type of momentum needed to end this legal and moral abomination.

As a brother of one of the detainees, Mohamedou Ould Slahi, wrote in a letter to Mr. Obama on Friday, "there is torture, too, in not knowing if or when an unjust imprisonment will end."

[Source: By the Editorial Board, The New York Times, NY, 19Sep15]

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small logoThis document has been published on 21Sep15 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.