As Syria, Iran and US politics have dominated the media in the past weeks, the continuing plight of Guantanamo's prisoners has receded from public consciousness. The shame of those prisons continues to hang over America. The denial of justice through indefinite detention and flawed trial procedures casts doubt on our country's professed allegiance to the rule of law.
In his September 24, 2013, speech to the UN General Assembly, President Obama alluded to Guantanamo. He said: "We are transferring detainees to other countries and trying terrorists in courts of law, while working diligently to close the prison at Guantanamo Bay." Yet to this day:
- The president has released only two prisoners (both Algerian) since his May 23 lifting of the moritorium on transfers to Yemen.
- Even though 84 prisoners, determined to be not a danger, were cleared for release in January 2010 by an inter-agency Guantanamo Review Task Force, no further prisoners have been freed.
- Of the 164 current "detainees" in Guantanamo, no more than 26 are considered as "significant threats." The remaining 138 (many of whom were rounded up and sold to the US military for bounty) have not been charged with any crime.
- The decadelong detention, without end in sight, has given rise to a hopelessness and despair that largely prompted the hunger strike begun in February 2013. To surpress the strike, prison authorities punished participants with forced feedings, lockdowns and solitary confinement.
When interupted by a Code Pink protester during his remarks at the National Defense University on May 23, 2013, the president condemned that detainees are being force-fed. "Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. ... Is this who we are? ... Is that the America we want to leave our children? Our sense of justice is stronger than that."
If so, why are 18 Guantanamo prisoners still being force-fed? Why are defense counsels in military commissions constrained in accessing and communicating with their clients? Why is the Guantanamo prison still operating?
As defense counsel Tom Wilner has observed, the president "has the authority right now in existing legislation" to transfer prisoners out of Guantanamo. Amendments to the National Defense Authorization Act allow the secretary of defense to make such transfers to other countries if he finds that the receiving country will take steps to "substantially mitigate" the risk of terrorist activity and that such transfers are in the US national security interests. Both conditions have been met. The president already has stated that closure of the prison is in the national security interest, while six European Union countries - have agreed to take detainees.
Yet the president has been unwilling to expend the required political capital. Despite his UN address last week and promises in his speech in May, Guantanamo remains open, 164 prisoners continue to endure indefinite detention, and the military appears to make up its trial procedures as it goes along.
According to a recent Pentagon report, the Guantanamo prison has cost US taxpayers more than $5 billion. That's almost half a billion dollars a year, or $3 million per prisoner per year. At 40 times the annual cost of a prisoner in a US Supermax prison, Guantanamo is the world's most expensive prison.
Defenders of Guantanamo argue against releasing any prisoners, even those determined to be without connection to Al Qaeda or other terrorist groups, for fear of recrimination. They oppose trying in US courts individuals accused of terrorist actions, and they would like to keep Guantanamo open indefinitely. In the name of national security, they would have the US government continue to violate the international legal standards and conventions that America helped create after World War II.
As in the case of prisoners released from US jails, recrimination is a risk - but a relatively small one given the record of releases to date. For legal and moral reasons, the 84 cleared Guantanamo prisoners should be released now. The 26 who are considered "significant threats" should be tried and if convicted, incarcerated. The remaining 54 prisoners should be tried or released. Such steps would allow Obama to enforce his executive order of 2009 by closing the Guantanamo prison forever.