Seven years after issuing an executive order promising “promptly to close detention facilities at Guantanamo,” President Obama pleaded with a skeptical Congress on Tuesday to accept a plan to shut that facility in Cuba and relocate some detainees to secure facilities in the United States. Congressional consent is necessary because of a law -- signed, albeit reluctantly, by Obama -- that prohibits the use of federal dollars to transfer Guantanamo inmates to the U.S. or to build facilities in the U.S. to house them.
The administration’s proposal is vastly preferable to the status quo. Members of Congress should endorse the goal of closing Guantanamo rather than continuing to stoke fears that imprisoning and trying suspected terrorists on American soil would endanger public safety.
But it is worth remembering as this debate continues that the problem with Guantanamo is not so much its physical presence as its symbolic importance. The prison is a reminder of a disgraceful era in which the U.S. aroused the anger of the world by engaging in torture and extraordinary rendition and by holding suspected terrorists without trial for years on end. Closing the prison itself would be an important gesture, to be sure -- but ending the underlying behavior is even more important.
To some degree, that has already happened. Obama banned torture by executive order shortly after coming to office, and Congress has passed a law prohibiting the cruel and degrading treatment of prisoners. Extraordinary rendition is not banned, but the administration says it only sends terrorism suspects to third countries if it receives assurances that they will not be tortured; that‘s fine, if you believe what those countries tell you.
Closing Guantanamo under Obama’s plan would involve sending many of the remaining 91 inmates to other countries, but for dozens more detainees, it wouldn’t guarantee either release or a trial (though their status would continue to be reviewed).
Transferring these detainees from Cuban soil to a civilian or military prison in the United States would allow the U.S. to close the physical facility at Guantanamo. But it wouldn’t address the difficult question of what to do in the long term with detainees considered too dangerous to release but who have been held -- in some cases for 10 years or more -- without charges being brought against them or the opportunity to defend themselves. In some cases, prosecution may be impossible because evidence was obtained through torture. Will the U.S. really hold them forever?
In a 2013 speech, the president sketched out a troubling scenario: “Imagine a future -- 10 years from now, or 20 years from now -- when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. ... Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?” In a similar vein, the president said Tuesday that keeping Guantanamo open “undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law.”
But the stain of Guantanamo on America’s reputation exists not because prisoners are held “on a piece of land that is not part of our country”; it is a result of their being held without trial anywhere. Americans 20 years from now might equally ask, “Is that who we are?” if an inmate captured after the U.S. invasion of Afghanistan in 2001 remains imprisoned in Illinois, Kansas or South Carolina.
Obama’s critics have argued that suspected terrorists at Guantanamo can be held indefinitely as war prisoners. The president himself, even as he has emphasized the ability of civilian courts to try terrorism cases, has clung to the notion that some suspected terrorists can be held under the “law of war.”
One problem with that theory is that the U.S. is now engaged in an open-ended conflict with Islamic State and similar groups. Does that mean indefinite confinement without trial not only for some inmates now at Guantanamo but also for other suspected terrorists who may be apprehended in the future?
In his 2013 speech, Obama expressed confidence that once the U.S. closed Guantanamo, the problem of indefinite detention could be resolved “consistent with the rule of law.” Whatever its other benefits, his new plan falls short of fulfilling that promise.
