Nice Speech on Closing Gitmo, Mr. President; but It’s still Open (Schanzer)

David Schanzer writes at Islamicommentary:

David Schanzer

David Schanzer

In his speech at the National Defense University, President Obama made his most impassioned and compelling argument to date about the need to close the prison for wartime detainees at the Guantanamo Bay Naval Base. But logic and presidential will are not enough to achieve this goal. It will take an intense effort by the Administration, cooperation from international partners, bipartisan congressional support, and perhaps forceful assertion of presidential prerogatives to get this done in Obama’s second term. It is difficult to see how all these pieces will fall into place.

Remember, this issue has never been about closing a prison facility. It is about what to do with 166 people, some of whom are dangerous terrorists that will almost certainly attempt to kill innocents if they are allowed to go free.

There are three distinct groups of detainees – each with its own separate legal status and obstacles to removal from GITMO.

First, there are the 86 individuals who have been cleared for release by our defense and intelligence agencies. Critics of the Administration correctly point out that this is the one area where Obama can take unilateral action to reduce the GITMO population, as Congress has left a narrow window for the president to transfer prisoners abroad through national security waivers.

With the announcement that transfers will now be allowed to Yemen – home to a large cohort of detainees – removals from GITMO could start up again after a hiatus of almost two years. But Obama suggested that the national security waiver process would be a halting, case-by-case review, which would have to meet the exacting standard set forth by Congress.

Yemen may be able to handle some detainees – but the U.S. is not likely to release dozens of them to Yemen’s custody very quickly given the fragile security situation there and the country’s checkered record on keeping militants behind bars.

Those hoping for a rapid releases based on the national security waiver process are going to be disappointed.

In his speech yesterday, Obama called on Congress to lift all of the other legislative transfer restrictions, but we should not hold our breath waiting for them to be repealed.

These provisions have bipartisan support and therefore likely will again be included in this year’s defense authorization legislation. Obama was unwilling to veto the defense bills in prior years. Will he do so now that he has become re-energized on GITMO (and is no longer running for reelection)? Vetoing a defense bill just because of GITMO transfers would risk an override and there is no certainty that Obama could muster 1/3 of the members in either chamber to support him on this topic. Perhaps there are enough Democrats with safe seats in the House to accomplish this. But this is an issue Democrats will probably want to avoid. Republicans would like nothing more than to pummel Democrats for voting to “release terrorists to dangerous countries.”

The second category of detainees are those who have been or will be convicted of crimes by military commissions. There may be as many as two dozen of them, but we don’t know for sure as recent court rulings have limited the types of crimes that military commissions may adjudicate. Those who are eventually convicted will need to serve out their sentences somewhere – perhaps until they die many decades from now.

Obama noted that people as dangerous or more dangerous than the GITMO detainees are being held in U.S. prisons, but he did not say anything else in the speech about transferring convicted detainees to the continental U.S. If anything, this would be an even harder mountain to climb in Congress than international detainee transfers. It would require the type of congressional arm-twisting that Obama has not been particularly effective at on any issue, let alone playing the ‘no terrorists in my back yard’ game.

If Obama wants to be bold, he could exercise his commander-in-chief authority and order the convicted detainees to be moved from GITMO to military jails inside the United States. He hinted that he might be thinking about doing this because he has directed the Department of Defense to identify a place that could hold military commissions (where presumably the detainees would be able to stay both during and after trial). This move would certainly instigate a direct confrontation with Congress that, first of all, Obama may lose, and second of all, could jeopardize other parts of his agenda, like immigration reform. For these reasons, advocates for a swift closure of GITMO should not expect to see this type of provocative move any time soon. Obama might designate a place for these trials to be held, but I am dubious that he would move detainees there against congressional will.

Obama noted that the hardest parts of the GITMO matrix are the individuals (perhaps as many as 60) who represent a continuing security threat but cannot be tried because we do not have sufficient admissible evidence against them. Obama’s approach seems to be that if we can get momentum toward closure with the other two categories, then “this legacy problem can be resolved, consistent with our commitment to the rule of law.”

Reliance on this optimistic platitude shows how far we are from closing Guantanamo. Obama is absolutely right that the thought of the United States maintaining custody of hunger striking detainees who have been charged with no crime, and must be fed with feeding tubes down their noses, perhaps for decades on end, is repulsive. But there are no good alternatives and Obama gave the country no insight whatsoever into how these hard cases can be resolved.

There is an interesting linkage, however, between Obama’s discussion of the Authorization for Use of Military Force (the AUMF) and GITMO. Obama called for repeal of the 2001 AUMF, which authorizes the President to use “all necessary force” against al Qaeda (without a temporal or geographical limitation). If this law is repealed, however, there will no longer be an active armed conflict. If there is no active armed conflict, there will be no legal authority to continue holding any detainees in GITMO that have not been tried and convicted. Repeal of the AUMF, therefore, would lead to the emptying of GITMO. But this is a nuance that will not be lost on Congress and is one, among many, reasons that a total AUMF repeal will be difficult to achieve.

Obama’s call for closing GITMO in the name of national security and our values is right on the money. Renewed presidential vigor to make progress on closure — like that which infused the beginning of Obama’s first term — can certainly make a difference. But the pragmatic and political difficulties that dogged the effort for years have not changed and are likely to take the wind out of this renewed effort as well. There is no clear, achievable path to total closure. A strong effort in the second Obama term could dramatically reduce the detainee population, but this is a nettlesome problem that will probably be left for Obama’s successor to finish off.

David H. Schanzer is an Associate Professor of the Practice of Public Policy at Duke University and Director of the Triangle Center on Terrorism and Homeland Security, a research consortium between Duke, UNC-Chapel Hill and RTI International. In these capacities, he teaches courses on counterterrorism strategy, counterterrorism law and homeland security.
 He is also affiliated faculty of the Duke Islamic Studies Center. Prior to his academic appointments, Schanzer was the Democratic staff director for the House of Representatives Committee on Homeland Security from 2003 to 2005. He previously served as the legislative director for Sen. Jean Carnahan (2001-2002), counsel to Sen. Joseph R. Biden Jr. (1996-1998), and counsel to Sen. William S. Cohen (1994-1996).

His positions in the executive branch include special counsel, Office of General Counsel, Department of Defense (1998-2001) and trial attorney, United States Department of Justice (1992-94).

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18 Responses

  1. I think that one reason why they can’t free any of the prisoners is that there are too many among them who successfully resisted every form of torture or persuasion.

    A few of them, indeed, broke their torturers rather than the other way around.

    Those men are possessed of a great moral superiority over their American captors, such as would inspire people around the world, should they ever be freed. The American leadership, while heedless of the world’s accusations of inhumanity, cannot bear to face the humiliation that would come of the world learning that a few helpless captives, using spirit and intellect alone, defeated an Empire in a decade-long struggle.

    • Roland,
      I think I understand your point, but there are some aspects of your statement that are not accurate.
      None of the Detainees at Gitmo today “successfully resisted every form of torture or persuasion.”

      These are physically broken men, every one of them.
      Each one was forced, on arrival, to take a superdose of Lariam, an anti-malaria drug that, in normal dosage, is 9.5 times more likely to be associated with violence (including homicide and suicide) than other drugs. Many are still taking psychoactive drugs.

      Almost all of these men have bizarre phobias and psycho-social disorders associated with long-term abuse.
      I don’t doubt that they are spiritually strong, thanks to their religious faith.
      Into the 4th month of fasting, many lose consciousness during the day, involuntarily.

      I am working with the Warden (its a hostile relationship, but at least he now has his attorney curse and threaten me – signs of progress) trying to arrange family visits for eligible Detainees.
      In my judgment, even the mentally and socially healthiest Detainees will need weeks of counseling and guidance before they are ready for the stress of such visits. It breaks my heart. If Colonel Bogdan agreed today to allow the first family visit, as soon as I could make it happen, I think it would take me more than 5 weeks before the arrangements could be made (on both ends) and the Detainees AND FAMILY MEMBERS adequately prepared.

      Frankly, the folks who are abusing these men under the authority of President Obama believe in what they are doing. You can wish that they would be ashamed of participating in what may look like crimes against humanity, but they just aren’t.

  2. Like it or not, this is a political problem. To close Gitmo, Obama needs to win the politics of the issue, or Congress will just block any executive moves the way it blocked his closure order in 2009.

    The last time Obama (and Holder) tried to win that political issue was when they proposed to try Khalid Sheik Mohammed in a New York City federal court. They fought the good fight, they made a passionate and convincing case, and they got their butts handed to them.

    Four years later, bin Laden in dead, al Qaeda is a shell, and the end of the Afghan War is in sight and highly desired by the public. Let’s hope the politics play out differently this time. That speech was a good start.

  3. Professor Schanzer,
    2 quibbles.

    FIRST, if the AUMF is repealed, whether today or 2 years from now, the US military will still be engaged in a half dozen or more shooting wars around the world, from Sahel to Galkayo, Helmand to Swat, and Sana’a to Hadramat.
    In the last 2 years, we have had US Special Forces wounded in Juba, Cali, Niamey, Jolo, and places I never even heard of.
    So I challenge the assertion that
    “If this [AUMF] is repealed … there will no longer be an active armed conflict.


    SECOND, I challenge the assertion that there is no clear, achievable path to total closure.

    For the 20 or so folks that will be charged and put on trial, or the handful who have already been convicted, they can be moved to the Thomson Correctional Center in Illinois with private funds, while a new military commissions building is finished at Rock Island Arsenal, 40 miles down the Mississippi. Heck, TCC is 146 acres. They could house the Commissions there.
    If the President asks, there will be plenty of folks who will contribute private funds to pay to move them. Note that Congress hasn’t explicitly prohibited moving them, they only prohibited using DOD funds for that purpose.

    All the rest –
    – the 86 who are cleared for release, and the 60 or so now destined for indefinite detention without end –
    all of them can be put in the Dat-dazh-deet Deradicalization Program and moved out of Gitmo in a matter of weeks.

    Voila – the only folks left at the Gitmo prison are Colonel Bogdan, Admiral Smith and 1,900 military folks (many of whom are Reservists or National Guard) with nothing to do. I suppose we could put 200 of them to work at Thomson, guarding the roughly 20 prisoners remaining. I recommend not hiring either Bogdan or Smith for that work.

    And the beautiful thing is,
    General Kelly’s FY14 $450 Million budget request is more than enough to pay for both of these, since we will no longer need to renovate the crumbling facilities at Gitmo.
    The Feds already bought TCC last year.
    We will have to pay to house the 20 until they all die, but it will be much cheaper in Illinois.
    The Deradicalization Program will also be funded in some future years, to a shrinking extent, until the program ends, again at a far lower cost than what we pay now.

    • How many of the total who are NOT the 20-odd hard cases have been radicalized by their treatment to the extent they should never be released?

      A halfway house/program for re-entry into whatever society can work for those motivated to get on with their lives; “de-radicalization” for someone who isn’t motivated to do so is at best naive, since by definition they would not be so motivated.

      • Travis,
        they have All been radicalized by their treatment at Gitmo.
        Many or most have told one or more of their gaolers that, if they ever got the chance, they would kill them.
        I’ve never been through what they’ve been through, but I can imagine I might react the same way.

        But what prevails under our system of values is not the security of indefinitely keeping hostage these men who have been wronged, in a Tom Cruise “pre-crime” “preventive detention” sort of way;
        we default to the Rule of Law.

        So, obviously, none of the functionally innocent (those who have been cleared for release, for example) should be kept even one day longer than necessary to provide the sort of treatment and deradicalization/ reintegration services they need.

        I accept that some will feign transformation and, at the first opportunity, join the fight against us. I don’t like that, and the program needs to do the utmost at reaching all of them, and turning all of them, but it probably won’t prevent all violent retribution.

        I accept that because I put our core values above the false security of inflicting even more harm on these guys, to prevent the blowback we might have brought on ourselves.
        It’s more than a theoretical risk; I think it’s reasonable to expect about the same percent of these guys acting out as in the earlier cohorts who were released.

        But DNI Clapper’s unsupported 27% “recidivism” rate is false. Only about 2.8% can be shown to have commited acts of violence after release. So, maybe 3 to 6 of this group.
        It’s an acceptable risk, considering the harm done to our nation by continuing to hold them.

        The Program is tuned to the culture and values of these men. It exploits the recent advances and discoveries in this field. It’s time we start learning how to deal with violent extremism with tools other than HellFire missiles.

  4. A few facts need to be pointed out:

    Salim Hamdan was trumpeted as a “high-value” prisoner. He was convicted of being Osama Bin Laden’s chauffeur. In a ruling that was almost completely unreported in the mainstream media, the United States Court of Appeals in the District of Columbia Circuit on October 16, 2012, vacated his conviction under the Military Commissions Act of 2006 noting that the conduct he was convicted for was not criminal in nature when they were committed, thereby rendering it an ex post facto prosecution violative of the United States Constitution.

    The International Committee of the Red Cross inspected GITMO in June of 2004. The ICRC inspectors accused the U.S. military of using humiliating acts, solitary confinement, temperature extremes and other proscribed conduct constituting torture – the U.S. government rejected these findings.

    The FBI inspected GITMO and also found human rights violations.

    By May 2011, at least six suicides occurred at GITMO.

    GITMO has had numerous detainees under the age of 18, in violation of international law.

    Guantanamo Bay was chosen upon recommendation of legal experts in the Bush administration for the reason its location – leased space in Cuba – would make it, in their opinion, outside the jurisdiction of the United States legal system, thus giving the Defense Department an apparent free hand in doing what it pleased to do – however the U.S. federal court system has reined in the U.S. government to a certain extent.

    GITMO is as huge as an embarrassment to the U.S. in Cuba as the Abu Ghraib prison was in Iraq.

    It should be closed down ASAP.

    • Mark,
      I’m inclined to believe what Scott Horton reported in January 2010 about three of those “suicides” being assisted by CIA interrogators.
      I accept the other 3 or 4 as genuine.

      The culture of JTF-GTMO hasn’t changed much over the years. Commanders and staff come and go, and yet none of them seems to ever be able to tell the unvarnished truth, for fear of offending their bosses.

      I recently got an affidavit that was signed 2 weeks ago, on 10 May, from a government official at JTF-GTMO J-4 who certified that all 166 detainees in JDG custody are officially classified as unprivileged belligerents.
      That official did not write that answer herself; she got it from the JDG Commander, who I refer to as the Warden.

      Break that down:
      every single Detainee is considered to be a combatant. None of them are the unlucky “wrong place, wrong time” schlubs that merit being Cleared for Release.
      In other words, the Warden rejects the determinations by the Presidentially chartered review panels under both Bush and Obama that said 86 of these men ought to be able to go home.

      In MP-speak, “unprivileged” means not entitled to the protections of the Law of Land Warfare as transmitted by the Geneva and Hague Conventions. To JTF-GTMO, that means it’s OK to abuse these sub-human deviants.

      Let me ask you to peruse “the Wire,” the weekly newsletter of JTF-GTMO. These jokers liken their duty of disrespecting and abusing 80-pound adult men to actual combat, and cry about getting PTSD from the rigors of torture. Inflicting torture, that is.

      Some folks choose to go into the Military Police Corps for the same reasons some folks go into civilian law enforcement – for the joy of pushing people around.
      See, e.g., A Clockwork Orange to get a taste of the fun of hurting other people.

      Past 60 and well over 250 lbs, I still self-identify as an Infantryman. While commanding a guardpost, I’ve walked the line at 0300 (3 AM) and found soldiers curled up in their foxholes, fetal position, sobbing and anticipating a North Korean soldier would stick them with a bayonet before dawn. Never been in combat, but I’ve been closer to it than David Petraeus ever got.

      This Warden, and his Admiral TF Commander, they are legends in their own minds. They would give each other Congressional Medals of Honor if they could.
      I challenged the “combatant” characterization and they pushed back with all they could.
      The JTF-GTMO SJA insinuated that I was a traitor for questioning their judgment and conduct, and threatened to sic the FBI and CID after me.

      Meanwhile, President Obama and Secretary Hagel are focused on a crisis in sexual abuse, to the exclusion of possibile criminality in detention operations.
      Recall the harsh sentence meted out to the guy who set the tone for torture at GTMO and later Abu Ghraib, MG Geoffrey D. Miller.

      • The “unprivileged belligerent” characterization was made to repudiate my contention/ demand that, under Army Regulation 190-8, these 86 were entitled to family visits.
        This characterization is false.

        • Brian: as a fella brought up in the time when the myths of America the Special had at least a little truth in them, when my teachers taught the forms and formalities of the “rule of law” thing under that Constitution thing, when there was a “Citizenship” merit badge for us Boy Scout types to earn (still is but different content) may I just say a heartfelt “thank you,” for what you are doing day to day, and for your perseverance in the face of that Other Thing that seems to now be the Reality, the new myths, that aren’t even being explored in schools or the press or even most of netspace. It takes courage of a special kind. Bless you. And thanks for posting here, for the benefit of those who don’t know or would obscure and obfuscate and “justify” and apologize about (the theological definition) the crap that is committed “in our names” on helpless and hapless Others.

        • JT,
          I do this for all Vets who have sacrificed, some more than others. I believe that the institutional criminality at GTMO disrespects those sacrifices, though not as much as the employment of Mercenaries. link to
          When an American combat unit takes a POW on the battlefield, even though the guy may have just minutes earlier been shooting at them, our soldiers treat these enemy soldiers with more dignity and respect – in the heat of battle – than the guards at GTMO treat their charges, where their biggest challenge is slow Internet.
          And where these Gitmo guards know that 60-80% of the people they are abusing are functionally innocent.

          I enlisted in wartime, frankly, because I had screwed up a life full of promise, greatly disappointing my family, and sought some kind of redemption. Purely selfish reasons.
          Many brothers and sisters in arms served because they had a vision of this country as Special, as you say, and considered it the duty of citizenship. True heroes, if a little boring.
          And I am only able to do this with the support and sufferance/ forbearance of my partner and wife, Rosa.

      • I was acquianted with Maj. Gen Adolph McQueen, who served as a commandant of one of the camps at Guantanamo Bay – it may have been Camp Delta. I knew him as an investigator at the Michigan Attorney General’s Office. His everday job was a Medicaid fraud investigator but he was attached to the U.S. Army Reserve in the military police section.

        He was a polite fellow during my interactions with him, never discussed his work in Cuba, but did confirm that he was a major general.

      • “In MP-speak, “unprivileged” means not entitled to the protections of the Law of Land Warfare as transmitted by the Geneva and Hague Conventions.”

        Brian, the reason they are not entitled to the protections of the Law of Land Warfare under Common Article III of the Geneva Conventions is because they are not Lawful Enemy Combatants, as defined by Common Article III (i.e., wearing uniforms, having rank, operating under a command structure, not attacking civilians, etc.) While they should not be subject to torture and abuse, they certainly are not entitled to the status of Prisoners of War.

        • Bill,
          I agree with what you’ve said.
          But I have two responses that challwnge whether that’s the right way to look at these guys.

          First, we’ve announced to God and everybody that we will accord them all the protections of GC, even though they don’t deserve them. So, presumably, wen we DO take GC-priviliged POW’s, this is how we’re going to treat them.

          Second, these guys aren’t Prisoners of War in any real sense, priviliged or not. They are hostages.
          Recall that many were sent to Gitmo in early 2002.
          What were US military forces doing in Afghanistan back then ?
          It was mostly a true SF operation, with US Army Green Berets acting as advisors to Northern Alliance combat units.
          The NA was fighting the Taliban, who were in power.
          This was an Unconventional Warfare mission, as I learned it. One of the first American casualties was an NCO from Co C-5/19 SF. I used to be an NCO in Co B (prior to 1980.)
          CIA paramilitaries like Johnny Spann were in similar roles.
          There weren’t any US ground combat units in Afghanistan back then.

          So how did the first Gitmo prisoners come to be in our custody ?
          We bought them.

  5. I don’t know where you are, but here in Australia David Hicks’ book is still in bookshops and in libraries. I highly recommend it, he is a very interesting young man and I found his book a real page-turner. Shame on the Australian government for turning their back on him until public opinion turned in Hicks’s favour.

  6. It may be closed, and moved. The location isn’t the main thing. Well maybe moving it to the mainland would be a slight negative because then precedent would be established for all the extra and quasi legal issues involved would become further institutionalized.

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