Perhaps it’s heartless to take issue with the details of President Barack Obama’s plan for closing the prison at Guantánamo Bay, which he announced in the Roosevelt Room of the White House, on Tuesday. He’s wanted to shut it down for so long, and nobody believes that Congress will let him, at least not in the time he has left. In the past few years, Congress has passed laws that make it nearly impossible for the Administration to bring any of the prisoners to American soil; Obama’s plan is premised on bringing thirty to sixty prisoners here. The mechanism offered for achieving that goal is to have Congress help the President out by changing the laws. Among other things, the plan may require Congress to provide hundreds of millions of dollars to construct new facilities in the U.S. (though it would save money in the long run); for Gitmo to close before he leaves office, that money would have to be delivered, the construction completed, and the prisoners settled in by next January. The energy required to map out how that legislative fight might go would be better spent reading the law-review articles of potential Supreme Court nominees whom the Senate will never confirm.
It’s certainly valuable having Obama talk, once more, about what’s wrong with Guantánamo. It’s been fourteen years since the first prisoner arrived there, and seven years since Obama issued an executive order that was supposed to close it. “Keeping this facility open is contrary to our values,” Obama said, this week. “It 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.” There is a glimpse of what the President was talking about in a suit recently filed by Mohammed Jawad, a child soldier who was subjected to torture both in Afghanistan and at Guantánamo, where he was held for more than six years. (He is seeking damages; he was released in 2009, without ever having been charged.) These reminders are particularly important given that the Republican Presidential candidates have taken to referring to the prison as a national treasure. Ted Cruz: “Don’t shut down Gitmo, expand it.” John Kasich: “I don’t favor closing Gitmo.” Marco Rubio: “We should be putting people into Guantánamo, not emptying it out.” And, inimitably, Donald Trump: “We’re going to load it up with some bad dudes. We’re going to load it up.” The one thing that Trump objects to about Guantánamo is the cost, which he figures he can make lower, and maybe have the Cubans help pay for, in the same way that Mexico is supposed to pay for his border wall. Right now, according to Obama, it cost “nearly $450 million, spent last year alone, to keep it running.” There are now ninety-one prisoners, and so that’s more than four million dollars per prisoner per year.
But it’s still worth noting that Obama’s plan fails to confront much of what remains shameful about Guantánamo. He noted that there are “thirty-five detainees, out of the ninety-one, who have already been approved for transfer.” These are people whom we have decided, after going through an exhaustive process involving multiple agencies, are being held for no good reason. Some have been “approved for transfer” for years. Part of the problem is finding a place to send them. The Administration has cut deals where it can, releasing prisoners to countries like Estonia (which took one person in the last fiscal year) or Uruguay (which took six). Obama has transferred a hundred and forty-seven prisoners. (The number for George W. Bush was about five hundred and forty.)
That leaves fifty-six prisoners who are not approved for transfer. Only ten have had charges filed against them and are at some stage in the process of being tried by a military commission. These include five 9/11 defendants, among them Khalid Sheikh Mohammed, who are mired in seemingly endless pre-trial proceedings, as both sides try to figure out the rules of these jerry-rigged proto-courts. Twenty-two more detainees have been identified as “candidates” for prosecution.
Then there are twenty-four people whom the Pentagon likes to refer to as “law of war” detainees; they have also been called “forever prisoners.” The government is not willing to put them on trial, either because it thinks that it would lose or because the cases are tainted by torture. But it has nonetheless decided that these men are dangerous, or that they could be—or the government just isn’t sure and doesn’t want to take any risks. And perhaps it would rather not admit to mistakes. The legal rationale, such as it is, is that these men are prisoners of war, although the government is increasingly vague about which war they are prisoners of, and when it might end—too vague, in terms of the precedents that all this might be setting. (Many were captured in Afghanistan; international law calls for the release of P.O.W.s upon the cessation of hostilities.) In 2009, in a speech at the National Archives, Obama said, “I have to be honest here, this is the toughest single issue that we will face.” His solution was to have “standards” and “fair procedures” for what would still be indefinite detention without charges. In 2013, speaking at the National Defense University, Obama was even less clear about how these indefinite detentions jibed with his calls to close Guantánamo, but said, “Once we commit to a process of closing Gitmo, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”
So how will it be resolved now? There are some hurry-up notions in the Obama plan—try to get that two-dozen number down, see if other countries would be willing to try the prisoners under their laws, and reviewing their cases. This is important and useful. But then there is still, as part of the plan, the big idea, the one that will never get through this Congress: keep detaining some prisoners indefinitely, but do so in a new prison somewhere in the United States, maybe at a military base, rather than in Cuba. Carol Rosenberg, of the Miami Herald, calls this concept “Guantánamo North,” a name that gets to the heart of the problem: this would not close Guantánamo, just move it.
Perhaps, then, Obama should concentrate on at least shutting down the category of forever prisoners, if he cannot shut the prison itself. This would involve not only paring down the number of such prisoners but also rejecting the rationale for holding them without charges. If there is suspected cause to lock someone away for life, there should be enough evidence for the government to at least take its chances with a military-commission prosecution, if not a civilian trial—even if the case seems weak and it might lose. It will be a partial, but real, victory for Obama if, when he leaves office, every Guantánamo prisoner has either been cleared for release or charged with something.
That won’t be easy, for all sorts of reasons. This is, again, not to dismiss the plan entirely: each time a prisoner is charged, convicted, or released, we are taking a step away from a very dark history. And it would be immeasurably better, when charging prisoners with crimes, to do so in civilian courts, and to fight for a way to bring them before American juries, which is also a priority under the plan. It does matter symbolically that Obama hasn’t completely abandoned his commitment. Still, the proposal for a Gitmo North is philosophically disappointing. It treats Guantánamo as a problem of geography, and not of the rule of law. “This is about closing a chapter in our history,” Obama said on Tuesday. Not quite, not yet.
