The announcement by President Obama on Feb. 23 regarding plans to close the detention facility at Guantanamo Naval Base in Cuba (Gitmo) is the latest effort to fulfill a campaign promise made in 2008. While some features of the plan may assist in that effort, other policies associated with the Gitmo controversy are doing the opposite.
The elements of the White House’s four-point plan for shuttering Gitmo include continuing to transfer those detainees already cleared back to their nation of origin; accelerating periodic review of detainee status, utilizing all legal tools to facilitate detainee hearings and sentencing; and securing one or more locations within the U.S. for transfer of those detainees who are deemed high-security risks.
There are at present 91 detainees at Gitmo out of the total 779 who have been sent there since the terrorist attacks on Sept. 11, 2001. Apparently, there will be about 60 left to incarcerate somewhere after the next wave of transfers is completed.
Dr. Samuel B. Hoff
There is no question of President Obama’s commitment to ending the use of torture as a means of interrogation; he announced an end to that practice just two days into his presidency in 2009. However, ongoing policies pertaining to Gitmo generally have been inconsistent toward the goal of closing the detention facility. To wit:
• Although the Obama administration had a window in 2009 for bipartisan backing for shutting Gitmo, it dissipated and was replaced with partisan bickering. While this was not all President Obama’s fault, he inflamed the controversy by repeatedly threatening to act on his own to close the facility. Combined with his generally poor relations with Congress, this only led to more opposition, even within his own party;
• Against the claim that Gitmo is used as a recruitment device for terrorist networks, The Wall Street Journal conducted an extensive study of video, print, and voice sources and found very little direct evidence indicating that Gitmo has been employed in such a manner;
• The Obama Justice Department has repeated the policy of the George W. Bush administration to oppose every detainee petition for habeas corpus, even after the 2008 rulings in Boumediene v. Bush and Al Odah v. U.S. The effect of this is twofold: it denies even the most basic right to those captured, but also delays the process of prosecuting or transferring detainees;
• A great deal of opposition to closing Gitmo has centered on recidivism of detainees. Multiple studies have pointed to the fact that over 200 detainees have recycled back into terrorist networks once released. Although the majority of such instances occurred during the Bush years, there have been at least 23 confirmed instances of released detainees rejoining the fight over the last two years;
• The latter statistic confirms the poor nature of how detainees are being investigated, tried, and sentenced at Gitmo. The military commission procedure has been an utter failure during both the Bush and Obama administrations, as witnessed by U.S. Court of Appeals rulings which have rejected the use of such bodies for non-war-crime cases. In fact, only eight of 779 total prisoners at Gitmo have been convicted by a military commission;
• While President Obama authorized the release of 198 pictures of detainee abuse from a decade ago, the White House simultaneously forbade release of another 1800 such pictures, defying a plethora of Freedom of Information requests;
• Even after the American Psychological Association reversed its policy on allowing psychologists to participate in Gitmo interrogations, the Pentagon recently asked the APA to reconsider the ban;
• The Bowe Bergdahl case rankled both supporters and opponents of the Gitmo facility by the five-to-one swap that returned Bergdahl to U.S. custody;
• As a result of the flawed 2014 Senate Select Committee’s Executive Summary on U.S. torture policy, an edited book was released in 2015 contradicting many claims in the report. The book, REBUTTAL, contains chapters from several former CIA chiefs;
• Some argue that President Obama’s latest plan to close Gitmo is more about improving relations with Cuba — which President Obama plans to visit next month — rather than a serious effort to change;
• Though the Obama White House has refused to prosecute those involved in torture, black sites, and other unseemly policies associated with the fight against terror, it has likewise failed to assist others who have been arrested for such activities. For instance, former CIA agent Sabrina de Sousa recently sued the U.S. State Department and CIA following her conviction in Portugal for the latter activities; she is currently awaiting a decision on her extradition to Italy;
• The White House has not made the case to Congress or to state officials effectively as to how high-risk detainees can be transferred to maximum-security prisons within one or more states, and is now contemplating using existing facilities at military bases, which Congress must approve.
President Obama is correct when he states that the abuses at Gitmo and elsewhere are inconsistent with U.S. values, which place primacy on human rights and the rule of law. But, as the brother of a cleared detainee reminds us, “There is torture, too, in not knowing if or when an unjust punishment will end.”
EDITOR’S NOTE: Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies director at Delaware State University. The DSU Law Studies Program contributed to a friend-of-the-court brief in the 2008 Al Odah v. U.S. case decided by the U.S. Supreme Court. Dr. Hoff has taught and published extensively on military, foreign policy and national security issues.