The president asked SecDef and Congress to ensure that detention policies support warfighting aims. That should mean shutting Gitmo down.
Will President Trump close the prison camp at Guantanamo Bay?
This question may sound preposterous. After all, President Obama, who called the prison a threat to national security and American ideals, actually tried to close it. President Trump, by contrast, is on record as vehemently favoring not only its continuation but its expansion. On Jan. 30 he reaffirmed that commitment both in his State of the Union address and in an executive order revoking President Obama’s order commanding its closure.
Why, then, even raise the prospect of closing Guantanamo during this administration? The answer lies in two related actions recently taken by the president: his command to Defense Secretary Jim Mattis to “reexamine our military detention policy” and report back to him within 90 days and his request to Congress to ensure that “we continue to have all necessary power to detain terrorists.” The two actions in conjunction represent an unexpected open-mindedness on the part of the president with respect to detention policy. By seeking a broad-focus, “blank-sheet-of-paper” review, asking Mattis to take charge, and inviting Congress to join with them, President Trump acted prudently and, dare I say it, wisely.
What Secretary Mattis should find and report to our president is that our current detention policies, including the use of Guantanamo, are a failure. They are overly cumbersome and restrictive from a military perspective. Also, they embody elements that violate core elements of U.S. law and human rights and damage our international reputation and our ability to achieve our foreign policy objectives. A well-crafted detention policy would seek to eliminate these costs and thus strengthen our nation’s defenses.
Such a policy should meet the following criteria:
First, it would permit the military, working in concert with other agencies and departments, to swiftly transport prisoners to the optimum locations for interrogation and detention—including, if need be, the United States. Because of our overly restrictive or unclear detention policies, tactical operations are being hamstrung, U.S. forces are suspected of making kill over capture decisions in anti-terrorism operations, and naval ships at sea are being used as interrogation sites, a wasteful use of valuable assets.
Second, while the U.S. has the legal authority to hold prisoners taken in the war against terrorism indefinitely, we should avoid buying into the endless headache of the wholesale or indefinite detention business. The only prisoners we should hold are those who have harmed or who directly threaten the United States. They should be tried and put away; the rest should be transferred to our allies. Detention policy should ensure that a pre-built off-ramp exists for every person brought into the system.
Third, detention operations should be conducted in strict conformity with U.S. and international law, including the Geneva Conventions. Not only is this mandated, it would reduce the legal friction that has proven so counterproductive in the fight against terrorism.
Fourth, the system to try terrorism defendants should yield swift justice consonant with the best traditions of the American legal system. Since 9/11, Article III courts have fairly and efficiently tried and convicted more than 620 individuals on terrorism-related charges. By contrast, despite more than 15 years of effort and three iterations, the military commission system has failed to trya single one of the detainees credibly alleged to have participated in the 9/11 mass murders. President Trump himself has noted the staggering inefficiency of the military commission system.
Fifth, U.S. detention operations should be harmonized with those of our allies, for the simple reason that this war is not a solo fight. One of the unfortunate mistakes made by the Bush administration in its response to 9/11 was to attempt to create a different legal architecture than the one that the international community had crafted so painstakingly out of the horrors of World War II. Our allies could not and will not condone torture, abandon due process protections as the military commission system has done, or support Guantanamo’s system of indefinite detention.
And, sixth, our detention system should be cost-efficient. Whatever Guantanamo is, it is not that. The cost of holding a single Guantanamo detainee is about 139 times more expensive than the housing a prisoner in the escape-proof Supermax prisons in the continental United States. Moreover, the military assigns 2,000 soldiers to guard the 41 Guantanamo prisoners, an unconscionably wasteful use of scarce personnel. The ratio of Guantanamo guards to prisoners is more than 48 to 1, while in the federal prison system it is about five prisoners to one guard.
The application of these criteria to our detention policies would lead to numerous long-needed reforms, all of which would help ensure that these policies support our warfighting objectives. These reforms would necessarily include the closure of Guantanamo and the elimination of the military commission system.
Mattis, who prizes boldness and whose command history shows no tendency for reinforcing failure, will likely recommend a break with the dead-end Bush and Obama detention policies. When he does, will President Trump and Congress abandon campaign rhetoric and act in the national interest? My hope is that they will.
- Alberto Mora is a Senior Fellow at the Harvard Kennedy School's Carr Center for Human Rights Policy and a former General Counsel of the Department of the Navy.