President Obama's long-promised plan for closing Guantánamo Bay has gone to Congress - with something of a whimper. It is not much of a plan, is it? It is essentially a restatement of what he said seven years ago when, as his first promise in office, he made the obvious case that the Cuban prison has been a disaster for America.
It is twelve years now since a U.S. intelligence officer opined in public that for every detainee we have abused and held without trial we have provoked ten people to wish us harm. He would surely revise his estimate upwards today: while Osama Bin Laden's Al Qaeda was a "small organization" in 2001, numbering a few hundred, thousands of disaffected youth have flocked to the ominous black banner of ISIS. And ISIS has used the infamous orange uniform of Guantánamo as a symbol, tormenting their hostages before savagely murdering them. This is not to suggest ISIS is anything but a barbaric group of millenarian misfits, but rather that the symbolism of Guantanamo has created a grotesque counter-symbolism that threatens global security. As both President Bush and President Obama have recognized, Guantanamo is destructive of our national interests and destructive of our effort to create a compelling counter-narrative to ISIS in the Middle East.
So President Obama is right: Guantanamo has been a disaster, undermining everything we stand for. But what does his new "plan" actually provide? Does it restore American moral authority? Does it stop the bleeding in the battle for Middle Eastern hearts and minds?
There are some telling facts. President Obama projects that if Guantánamo remains open, and the current 91 detainees are whittled down to some 60 or so, they will be costing us some $15 million a year per prisoner. You would think for that money that they were being maintained in some Trump residence. But from my experience in the miserable conditions - for prisoner and soldier alike - at what has been labeled the Gitmo Gulag, it is unfathomable where our tax dollars go. There are 91 men, many debilitated by protracted hunger strikes, shackled in a maximum security facility patrolled by detachments of soldiers and armored HUMV's on a spit of land in Cuba ringed by shark-infested waters. They are not going anywhere. Yet Guantanamo spends vast amounts on unnecessary security that is a colossal waste of resources. Many of the young reservists are indoctrinated by commanding officers that they are guarding "the worst of the worst," despite the fact that only ten of these men have ever been charged with a crime and many have been cleared for release for years and are waiting for a third country to take them.
Yet President Obama's "solution" is troubling. He speaks of working with Congress as if, in this most bizarre of election years, it is likely that the party of Trump, Cruz and Rubio, after seven years of frustrating him at every turn, is going to quietly close the prison down. Ultimately, Obama is going to have to take a leaf out of his Republican predecessor's book and assert executive authority, here made the more credible in his role as Commander-in-Chief.
Second, the President is vague when he advocates changes to the Military Commissions, first confected in 2003, as if the current Congress would agree to that either. This discredited and dysfunction tribunal has thus far convicted not a soul in 13 years, not even the alleged 9/11 conspirators. He should simply turn to Article III courts and the Uniform Code of Military Justice - as required by the Geneva Conventions and by good sense. For this, he needs no Republican approval. American courts have a far better record, promptly and effectively trying accused terrorists. The Military Commissions cannot even sort out what law or procedure applies. The Military Commissions have failed. Anyone who can be tried should be tried in Article III courts.
Third, he advocates continued detention without trial - ad infinitum - for some prisoners if they are transferred to the mainland. This appears to be a group of 40-50 whom the President has determined cannot be tried, but he will not release. Presumably, the evidence is either not available to be submitted to a court or obtained by torture. But it also may not exist. Having seen numerous dossiers, I cannot but conclude that much of what counts as intelligence would be laughed out of court. Bringing these men to America would simply establish Guantanamo North, a place where America, for the first time in its history, asserts a right to detain without trial for life. Frankly, they might be better off in Guantanamo where at least they have each other and their shared history of indefinite detention, rather than being dispersed in American prisons and forgotten.
But indefinite detention without trial is un-American and unacceptable. The President should, rather, seize the nettle that is Guantánamo, move everyone to a military base on the mainland, and start the process of real trials - in the tradition that has served this country for the past 240 years. Our trial judges handle sensitive information, including classified information every day. If there is a basis to try them, our federal district courts can do it. If there is evidence, they will be convicted; if there is no evidence, they will be acquitted. U.S. juries are not notably tolerant of terrorism. The men of Guantanamo would be accountable for their proven acts, as terrorists have been throughout the history of the Republic. If criminal acts cannot be proved, they would be released. The vast security apparatus could certainly maintain surveillance on those who it suspects to prevent any wrongdoing in the future. But keeping men in prison for life without evidence of crime based on predictions of future dangerousness is a uniquely dangerous anomaly. Bringing these men here, organizing proper trials and abiding by the results, that would certainly be a plan.