Our FaceOff debaters discuss whether or not the U.S. should close the base in Guantánamo Bay, Cuba.

Guantánamo Must Stay Open

By James Jay Carafano, Ph.D.

The question of closing the Guantánamo Bay detention center is not the heart of the issue of how the U.S. treats detainees and prosecutes the war on terrorism. Regardless of where detainees are held, the government has a dual responsibility to uphold the rule of law and to protect the nation.

Currently, the detention facilities at Guantánamo Bay are completely fulfilling those responsibilities, and any plan to move them would have to be justified on the basis that it would be more efficient and effective than the current system.

Under the international law of war, the U.S. has the authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may hold captured enemy fighters not as punishment, but to keep them from returning to the battlefield.

Additionally, where detainees are suspected of committing serious crimes, the U.S. has the right and obligation to place them on trial. After the Supreme Court decision in Hamdan v. Rumsfeld, the administration worked closely with Congress to create a framework to try unlawful enemy combatants before military commissions.

Following extensive debate and many hearings on the topic, the Senate and House passed the Military Commissions Act of 2006 by large majorities, and President Bush signed it into law on Oct. 17, 2006.

Modeled after the code that the U.S. military uses to try soldiers, sailors, airmen and Marines, the MCA provides unprecedented rights to alien unlawful-enemy combatants at trial. The Act balances U.S. international law obligations and the national security of the U.S. as long as the conflict continues.

The MCA provides alien unlawful-enemy combatants virtually the same due process and rights that are provided by the United Nations in their war crimes tribunals, such as the International Criminal Tribunal of Yugoslavia. Ultimately, there is no question that the U.S. has a legal right and obligation to detain combatants and try suspected criminals, and must do so in accordance with its obligations under the law.

 

Doing the Right Thing

Whenever the U.S. military holds combatants, it must meet certain obligations, such as holding detainees in a safe, humane and secure manner; determining their combatant status in a timely manner; and reviewing their detention periodically to ascertain if it is still warranted. These basic obligations are the same regardless of where the combatant is being held, and all are being met in accordance with U.S. law at the military detention facilities in Guantánamo Bay.

A legitimate tribunal process determines whether detainees are a threat to the U.S. Annually, the tribunal reviews whether detention should continue—a process that has led to the release of a number of detainees.

Some have been returned to their home countries or given asylum in other countries, while others will be released as soon as the U.S. ensures that the countries to which they are returning will treat them in a humane manner. Still others will be tried as war criminals under a military commission process established and authorized by law. The operations at Guantánamo Bay meet the letter of the law and are being performed by the U.S. military in an exemplary manner.

 

Changing Course

Any proposal to move detention operations must articulate how these operations can be performed more efficiently and effectively in a different location. Arguing that the U.S. should close the Guantánamo facilities merely to placate criticisms of its detention policies is insufficient.

By and large, the criticisms are patently false and unjustified. Because the government’s responsibilities are not going to change, it is unlikely that detention operations will be conducted in a significantly different manner if they are moved. Because of this, simply closing the facilities at Guantánamo Bay is not likely to placate any of the critics.

The best policy is to continue to do the right thing: Protect American citizens, respect the rule of law and combat transnational terrorism. Moving the jails will not change anything.

 

James Jay Carafano, Ph.D. is assistant director of the Kathryn and Shelby Cullom Davis Institute for International Studies and a senior research fellow for the Douglas and Sarah Allison Center for Foreign Policy Studies. He is also a leading expert in defense affairs, military operations and strategy, and homeland security at The Heritage Foundation.

 

 

Guantánamo Must Be Closed

By Andy Worthington

 

Guantánamo prison must be closed for the same reasons that have been argued since it opened over six years ago. In a country founded upon the concept of due process, it is completely indefensible to declare prisoners “illegal enemy combatants” and hold them without charge or trial.

If these prisoners were—or are—actual terrorists, as the government has persistently claimed, they should be charged as such and tried as criminals on the U.S. mainland. Instead, hundreds of innocent men, including charity workers, economic migrants, religious students and teachers, have been rounded up in Afghanistan and Pakistan by the U.S. military’s local allies and handed over for bounties averaging $5,000 a head.

Hundreds of Taliban recruits have been detained as well, although the Bush administration has struggled to connect them in any meaningful way to al Qaeda or the events of 9/11. The majority of these men had traveled to Afghanistan before 9/11 at the urging of radical sheikhs in their home countries to aid the Taliban in their fight against the Northern Alliance.

There will never be any legitimate excuse for holding so many innocent men. According to Article 5 of the Third and Fourth Geneva Conventions, if any doubt exists about the status of prisoners captured during a war, they must be subjected to battlefield tribunals designed to deal promptly with those captured by mistake.

This has happened in all previous wars conducted by the U.S. During the first Gulf War, battlefield tribunals were held for 1,196 prisoners; nearly three-quarters of them were released.

The treatment of prisoners at Guantánamo is equally as shameful as their detention and only adds to the necessity for the closure of the prison.

When prisoners at Guantánamo fail to provide significant intelligence, authorities claim it is because they have been trained by al Qaeda to resist interrogation. This has resulted in “enhanced interrogation techniques,” including prolonged isolation, forced nudity, sexual humiliation, religious abuse, and the use of extreme heat and cold and excruciatingly painful stress positions, which—under any definition other than the one chosen by the Bush administration—is torture.

Furthermore, along with their well-documented denial of habeas corpus, prisoners have not been allowed legal representation in the tribunals and have been refused the opportunity either to hear or challenge the “classified evidence” levied against them.

Last year, two military officers who served on the tribunals submitted statements declaring that they relied upon generalized evidence, which consisted of “information obtained during interrogations of other detainees.”

What of the truly dangerous prisoners? According to dozens of high-level military and intelligence sources cited by The New York Times in June 2004, none of the prisoners at Guantánamo “ranked as leaders or senior operatives of al Qaeda,” and “only a relative handful...were sworn al Qaeda members or other militants able to elucidate the organization’s inner workings.” To these can be added some of the ten prisoners and 14 “high-value” prisoners who were transferred to Guantánamo from secret CIA prisons in September 2004 and September 2006.

What will happen to them is unclear. In mid-February, the Pentagon pressed charges against six of the “high-value” prisoners most closely associated with 9/11, including the self-confessed architect of the attack, Khalid Sheikh Mohammed. However, the system chosen for their prosecution—trial by military commission—has yet to record a single significant success.

Dreamt up by Vice President Dick Cheney and his advisors in November 2001, the commissions—like the tribunals—are empowered to use hearsay evidence, and may use evidence obtained through coercion if approved by the government-appointed military judges.

One of their own military defense lawyers, Lt. Cmdr. William Kuebler, has condemned them as rigged, ridiculous, lawless and unjust. Another, Lt. Cmdr. Charles Swift, explained to Vanity Fair in March 2007 that “the whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is...what some people call torture.”

If that alone doesn’t justify closing Guantánamo prison, what does?

 

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, published by the University of Michigan Press. For more information, visit his website.