Cliff Sloan is a distinguished visitor from practice at Georgetown University Law Center. He served as special envoy for Guantanamo closure in 2013 and 2014. His previous government positions include service as associate counsel to the U.S. president and assistant to the solicitor general at the U.S. Department of Justice.
This month marks the nineteenth anniversary of the attacks of September 11. As we honor the memory of those who perished, a deeply troubling strand of the legacy of those horrific attacks remains—the detention of individuals at Guantánamo, a location initially selected, at least in part, so that they could be held in a “legal black hole."
Even though no person has been sent to Guantánamo as a detainee since 2007, today 40 human beings—often forgotten—languish at the facility as “forever prisoners” of an endless war, most of them without any charges filed against them. Many have been there for close to two decades now. As much as we have an inclination to avert our eyes to the seemingly insoluble problem of Guantánamo, addressing the situation of these long-detained men is an urgent legal and moral priority.
As much as we have an inclination to avert our eyes to the seemingly insoluble problem of Guantánamo, addressing the situation of these long-detained men is an urgent legal and moral priority.
At the outset, it is important to clear away a fundamental misconception about Guantánamo—that nothing can be done and that it is hopeless to try. While it is often said that President Obama failed to keep his promise to close Guantánamo, the substantial progress that he made is rarely recognized. Guantánamo housed 242 detainees when President Obama took office. Against all odds and despite intense controversies, when President Obama left office, only 41 detainees remained at Guantánamo—a reduction of more than 82% in the detainee population. And even President Bush, whose administration inaugurated both the Guantánamo detention era and the abuses that are inseparably identified with the facility, reduced the detainee population from more than 750 to 242 before he left office. As George Mitchell famously said about the “intractable” challenge of Northern Ireland, no problems created by humans are beyond the capacity of humans to solve. An assumption of futility regarding Guantánamo is neither accurate nor acceptable.
Another obstacle to resolution of Guantánamo is the prevalence of sweeping, erroneous generalizations on both sides about the nature of the individuals there. The 40 individuals at Guantanamo fall into two categories.
First, 30 individuals have never been formally charged with any offense in any venue. Defenders of their detention say that they are unlawful combatants justly held while hostilities persist. Leaving aside the question whether their initial detention was justified, the length of detention must matter in any reasoned assessment of their continued deprivation of liberty. Most of these men now have been held, without any charges, for close to two decades. How long will they be detained? In perpetuity? What of the rule of law, and the moral obligation to ensure that we do not sanction endless detention without the safeguards of trial? The problem is especially pronounced because the “hostilities” to which they were said to be connected have morphed so dramatically from the time of their capture. (The circumstances underlying the basis for detention in many cases no longer even exist.) In light of the length of their detention and the dramatic transformation of the “hostilities” asserted to justify their detention, it is time, finally, to transfer these uncharged men from Guantánamo to other nations, as has been done with hundreds of other Guantánamo detainees. There is simply no excuse for any delay in their transfer from Guantánamo and from U.S. custody.
Most of these men now have been held, without any charges, for close to two decades. How long will they be detained? In perpetuity?
Second, 10 individuals are in the military commissions process, a jerry-built, problem-plagued prosecutorial system erected solely for the Guantánamo detainees. Nine of the 10 are currently facing charges. These include people like Khalid Sheikh Mohammed, accused of the monstrous crime of plotting the 9/11 attacks. While these men at least are in a formal process facing actual charges, the military commissions system has been a fiasco, beset by long delays, lack of institutional competence, and farcical proceedings. These individuals should have been tried in federal criminal courts, which have a long history and expertise in adjudicating complex criminal trials, including those involving terrorism and mass fatalities. Congress’s decision in 2010 to prohibit the entry of Guantánamo detainees into the United States for criminal trials was a short-sighted, irrational, panicked, uninformed, and tragic mistake. But that is no excuse for inaction now. For some of these men, it may be possible to identify a viable path of prosecutions in federal court. For all nine, negotiated resolutions to the pending cases should be pursued promptly and aggressively, including resolving a bizarre legal anomaly that now prevents Guantánamo detainees from pleading guilty to federal criminal charges.
The tenth individual currently in the military commissions process was convicted in a commission proceeding of three charges, two of which were thrown out by the U.S. Court of Appeals for the District of Columbia Circuit. Arrangements should be made so that he can serve his sentence elsewhere, either outside of U.S. custody in a location that can ensure his humane treatment and provide credible security assurances or in another U.S. location.
In addition to the fundamental legal and moral unfairness of holding men for decades without charges or resolution, there is a powerful practical reason for closing the Guantánamo detention facility. It is absurdly expensive, currently costing $13.5 million per year per detainee—far more than any other detention or incarceration regime in the United States. The cost grows every year, moreover, with the aging of the detainee population and the need for bringing medical equipment and care to the remote island prison.
As America has moved away from the early days of the chaos and anxiety of the War on Terror, the CIA’s Rendition, Detention, and Interrogation program, and the policy choices that at times left us estranged from our values, it has been convenient and common to ignore and forget the slow-motion tragedy continuing to unfold at Guantanamo. But the problem is not insoluble, and there is simply no moral or legal justification for allowing Guantánamo to persist as a forgotten black hole suffocating 40 human beings. The plight of all 40 must be addressed, with clarity, focus, and determination.
Editor’s Note: The views expressed are those of the authors and do not represent the views of the U.S. government.