Guantanamo's Collapse

The Department of Defense has requested $170 million to upgrade the detention facility at Guantanamo Bay in next year's budget, but no amount of money will repair the government's irrational terrorism detention policy that is collapsing even more quickly than the dilapidated facility in which the hunger striking detainees are housed.

There are multiple authors of this mess: The Bush administration took custody of 779 detainees without properly scrutinizing whether their detention was justified or necessary. The Supreme Court upheld the power of the government to detain individuals captured on the battlefield until the end of the hostilities against the global al Qaeda network, but provided no indication how long this non-traditional armed conflict could last. President Obama promised to close Guantanamo by 2010, but had no pragmatic plan to implement this goal or political strategy to sell it to the American public and the Congress. And finally, with bi-partisan support, the Congress has placed a legislative stranglehold on efforts to close Guantanamo by making it virtually impossible to transfer detainees to either the U.S. criminal justice system or foreign countries.

What we are left with is a military prison that holds 166 people, 100 of whom reportedly are on hunger strike and 21 are being fed through nasal tubes. Our defense and intelligence agencies have determined that 86 detainees can be released to other countries because the national security does not require their continued detention. Of the other 80 detainees, it is estimated that two to three dozen could be tried by military commission. An Obama Administration task force concluded that the rest of the detainees are too dangerous to release, but ineligible for a trial due to lack of admissible criminal evidence against them.

Our policy is collapsing for each of these three clusters of detainees.

With respect to those detainees cleared for transfer, the Obama administration's initial plan was to work diplomatically, case-by-case, to find countries willing to take custody of detainees and take reasonable steps to prevent them from returning to terrorism. These efforts led to the transfer of about 76 detainees from 2009 to the end of 2010, reducing the jail's population by about 25 percent. But then the flow of transfers dried up -- with only 7 detainees having been transferred in the past two and a half years.

Why did the situation change?

First, the detainee issue became hyper-politicized when Attorney General Holder announced in November 2009 that Khalid Sheikh Mohammed and his co-defendants would be brought to New York for trial. When political support for this move collapsed, transfers of any kind from Guantanamo became a political hot-button issue. By the end of 2010, Congress had enacted tight restrictions prohibiting all transfers unless the president certified that a transfer was in the national security interests of the United States. This action is in stark contrast to Congress treated the Bush Administration, which transferred 532 detainees out of Guantanamo without any legislative restrictions or severe political blowback. Instead, Congress created a legislative framework that, in essence told the president: "You can make transfers if you want, but if anything goes wrong -- it is totally on your head." As the presidential election season began in 2011, the administration was unwilling to take any chances on this issue.

A second factor was the emergence of al Qaeda in the Arabian Peninsula as a powerful force in 2009, with first the unsuccessful underwear bomb in late 2009 and then the attempt to down a cargo plane with bombs hidden in computer cartridges in 2010. Concerns about security in Yemen -- the home country of 92 of the remaining detainees -- made new transfers there untenable.

So we are left with a situation where a large percentage of the detainees had their hopes raised by being cleared for transfer out of Guantanamo, only to have them dashed by the transfer shutdown. It is this grave disappointment that appears to be fueling many of the hunger strikers. Unless something is done, we will be in the untenable position of having individuals die while in our custody even though our own national security agencies have determined they do not require continued detention at Guantanamo. (It is worth noting that 9 detainees have already died in custody at Guantanamo in its over eleven years of existence).

Even if the transfer process can be restarted and the hunger strike broken, the other two groups of detainees present even more intractable long-term problems.

Court rulings have made it far more difficult to mount prosecutions against many of the detainees by casting grave doubt as to whether conspiracy and material support for terrorism charges may be adjudicated in military commissions. Detainees who have committed these crimes could be tried in a U.S. court, but Congress has prohibited any use of federal funds to bring them to the United States for trial.

Moreover, even if convictions are obtained against some of the Guantanamo population, the question will then be: Where will these convicts serve their time? Some of them may receive death sentences, but others may not and require incarceration for many decades. Congress is adamantly opposed to moving any detainees into the United States. Prospects for any thawing of this position are slim to none. To close Guantanamo -- convicts will have to be placed in some other military detention facility abroad or the president will have to defy Congress on constitutional grounds and order a transfer to a U.S. based facility. Despite the Administration's continued public position that it wants to close Guantanamo, no one in the Administration has explained what it intends to do about this aspect of the Guantanamo quagmire.

Complications are multiplied for the detainees who cannot be tried for crimes, but are too dangerous to transfer or release. The legality of their detention relies on a 2004 ruling by the Supreme Court stating that individuals captured on the battlefield could be designated enemy combatants and held under the law of war until the end of hostilities. These "hostilities" were defined by Congress in the post-9/11 use of force authorization as being against "those nations, organizations, or persons" who "planned, authorized, committed or aided" the 9/11 attacks. While the amorphous al Qaeda network is still potent in many parts of the world, at some point the Supreme Court may determine that al Qaeda central -- the Afghanistan-based organization that executed the 9/11 attack -- has been defeated. At this point, the legal framework for the indefinite detention of detainees yet to be convicted totally falls apart since the "hostilities" referenced by Congress will no longer exist.

What is to be done?

The easiest option is to do nothing. The hunger strike will persist. Some detainees will die; others will be kept alive against their will. Guantanamo will remain a flash point in our international relations and a rallying point for extremists around the globe. It will be impossible to quantify how much damage is being done to our national security, but we will absorb it because the other options are so difficult to do. Unfortunately, this is the most likely way forward.

Fixing Guantanamo -- which is what Obama clearly wants --- will require him to take risky unilateral action and dedicate a great deal of political capital.

First, Obama will need to stick his neck out by restarting the transfer process under the national security waiver provisions in current law. If he believes that the stain of Guantanamo is truly harming our national security, and the risk of sending some detainees abroad is not too severe, then duty requires him to approve some transfers. To do this, he will also need some help from allies in the Middle East or elsewhere that have facilities that can handle these individuals and programs that might make resettlement a legitimate option. If the Administration is unwilling to take the political heat for authorizing transfers, then it has to admit that it no longer intends to even attempt to close Guantanamo.

Second, the Administration needs to clearly state where it intends to incarcerate those detainees who are either convicted in military commissions or will be held indefinitely under the law of war. Closing Guantanamo will be beneficial, because it would eliminate having a concentrated mass of detainees in one place, where they can take joint action and focus the attention of the world. Building a new detention facility for all of the same people in the United States will achieve nothing, as it will quickly be labeled Guantanamo North and cause all the same problems we have currently with Guantanamo Bay, Cuba. Instead, we could disburse the population to other detention facilities, including military jails and super-max prisons in the United States where the detainees will be isolated and quietly reach old age over the next decades. The so-called blind sheik - Omar Abdel-Rahman - who was convicted of conspiring to bomb multiple sites in New York City, is serving a life sentence in a medium security medical prison in anonymity less than 25 miles from my office. Who knew?

Finally, we need to come to terms with creating a solid legal framework for the extremely rare cases when dangerous individuals are captured, but for a variety of reasons, cannot be tried in our criminal justice system or military commissions. There are many proposals for how this could be accomplished in a constitutional manner, but it will require hard bipartisan legislative work and a de-politicization of the detainee issue. It is hard to see how this might occur in our current political posture, but perhaps this would be a worthy project after the 2014 elections for a lame duck president and members of Congress who recognize that our current terrorist detention system is both unsustainable and damaging to our national security.

David H. Schanzer is an associate professor of the practice of public policy at the Sanford School and director of the Triangle Center on Terrorism.  This commentary was originally published in The Huffington Post.