President Obama’s plan to close Guantánamo has seemingly been criticized by all sides of the political spectrum. At a hearing before the House Foreign Affairs Committee this week, Republicans objecting to closing the prison in general and specifically to the aspect of President Obama’s plan that would bring some detainees into the United States for either trial or continued law of war detention. That same aspect of the plan was also attacked from the left as not closing Guantánamo, simply moving it, or what has become known as “Guantánamo North.”
Regardless of the chances of this aspect of the plan being implemented before Obama leaves office, it is important to set the record straight. Describing Obama’s plan as Guantánamo North both cheapens the original and extremely justified criticisms of Guantánamo and harms efforts to improve US detention policy going forward.
Let’s recall the original objections to Guantánamo. They weren’t simply based on the fact that the US military was holding detainees captured in the war on terror. But rather, that the facility was a tool for manipulating the the concept of military detention as a way of skirting the law. The Bush administration chose to house the prison at Guantánamo precisely because it was believed that the unique circumstances of the base’s location put it outside the reach of any law or jurisdiction of any court. It needed this legal black hole because it viewed traditional laws and rules governing military detainees as “quaint” and “obsolete” and it intended to torture and abuse the detainees to obtain intelligence. Guantánamo became an incubator of torture techniques that led to the horrific abuses of Abu Ghraib and spread to every theater in Bush’s war on terrorism.
The Bush administration quickly moved hundreds of detainees to the eastern tip of Cuba, the overwhelming majority of whom were turned over to US forces by either local Afghan militias or foreign governments. There was little or no process for determining whether the detainees were actually Taliban or al-Qaeda fighters or whether they were lawfully held even if they were. As a result, Guantánamo held a lot of goat herders instead of the intended terrorist masterminds. The high number of innocents only added to the outrage of the hastily established military commissions system designed to fast track cases to predetermined convictions and likely executions.
There is nothing in President Obama’s plan that can be compared to this. He has not sent a single individual captured in the fight against terrorist groups to Guantánamo, instead trying them in the federal criminal courts, and has tried to close the prison. Rather than intentionally violating the laws of war, he affirmed their applicability. He reinforced the already existing legal prohibition on torture by explicitly eliminating the Bush administration’s interrogation techniques and closing down secret CIA detention sites. (This prohibition was codified just last year as part of the 2016 National Defense Authorization Act.)
True, the remaining few dozen Guantánamo detainees that President Obama proposes to move to the United States will presumably be held in continuing law of war detention, and most won’t face charges in either federal criminal court or a military commission, but that doesn’t mean their detention is unlawful. Most, if not all, of the likeliest Guantánamo detainees to be in this last three dozen were enemy fighters captured either in Afghanistan or near the Pakistan border in 2001 or 2002 in connection with the war against al-Qaeda, the Taliban, and their supporters in Afghanistan. The Supreme Court ruled in 2004 that individuals that were fighting against the United States in Afghanistan can be held in law of war detention for the duration of that conflict (specifically, ongoing US “combat operations”). At least, insofar as the circumstances of that war conform to the kind of conflict that informed the formation of those laws.
These detainees can contest their detention in federal court, and some have. Cases are being heard regarding the status of the war in Afghanistan and whether the end of the US’s “combat operations” there constitutes grounds for discontinuing law of war detention. Another possible ground for ending such detentions for these individuals — first raised by the Supreme Court in 2004 — could be that the fight against al-Qaeda and the Taliban, now in its 15th year, has grown so long with no end in sight that it no longer justifies law of war detention in the traditional sense. And if these approaches fail, the Periodic Review Boards established by the Obama administration are working through all of the remaining detainee cases. These PRBs are no mere formality and have cleared for transfer roughly two-thirds of all detainees to have their cases heard.
That is not to say there aren’t still problems. The DC Circuit has faced legitimate criticism of its handling of the habeas cases of Guantánamo detainees. The Obama administration has not moved quickly enough to hold the PRBs or to transfer cleared detainees out of Guantánamo. The process of force-feeding detainees on hunger strike is gruesome and obviously very painful. The military commissions are definitely a shambles, and so hopelessly bogged down in procedural motions that there are unlikely to be more prosecutions beyond the three cases already underway. These are real concerns but they pale in comparison to the original horrors of Guantánamo.
Guantánamo correctly became shorthand in the United States and around the world for the darkest period of the Bush administration’s war on terrorism. Conditions at the prison are now dramatically better than they were in the early days and President Obama’s plan obviously bears no resemblance to the old Guantánamo. But even if advocates don’t intend to draw this exact parallel, too few people have appreciation of the distinction between the Guantanamo of 2002 and its current form. Labeling a new site “Guantánamo North” conjures up the worst images of the prison from its early days. This confusion contributes to the erroneous narrative that Obama hasn’t really changed Bush’s detention policy. Eroding the important differences between them only increases the likelihood that a future president could slip back to the worst abuses of the Bush era.