Brennan Linsley/AP Photo
A shackled detainee is escorted by U.S. military personnel to an annual review board hearing, inside Camp Delta detention facility at Guantanamo Bay Naval Base, Cuba, December 6, 2006.
Last week, Sen. Dick Durbin (D-IL) held a much-awaited hearing titled “Closing Guantanamo: Ending 20 Years of Injustice.” It was hardly the first such hearing or congressional discussion of closing the island prison. As Durbin had noted in 2013, “I have spoken on the Senate floor more than 65 times about the need to close this prison.” Eight years and many hearings on closure later, the issue has now once again been put before Congress. And yet as much as this was about Gitmo closure, the underlying debate has taken on a new sense of urgency in today’s political climate.
Guantanamo now houses 39 prisoners, consisting of two groups of detainees: 12 whose cases come under the jurisdiction of military commissions (ten of whom still await trial; two have been convicted); and 27 who are in indefinite detention, never having been charged. At last Tuesday’s hearing, six witnesses addressed the Judiciary Committee—four in favor of closure, two decidedly against.
Those who spoke in favor of closure repeated the arguments about the damage the prison’s continued presence causes. Witnesses and committee members focused on the issues of cost—more than $13 million per prisoner per year—and the need for closure for the families of the victims of 9/11.
A centerpiece of the discussion was the rank failure of the military commissions. Marine Brig. Gen. John Baker, who is stepping down as the chief defense counsel for military commissions after six years, spoke of the “20 years of injustice” as a “a failed experiment.” To back up his claim, he cited the hard-to-contest paralysis of all the military’s commissions, not just at Guantanamo, which have failed to function. In 15 years, as Baker summed it up, there have been just eight total convictions, four of which have been overturned, three still on appeal, leaving only one conviction still standing. Meanwhile, Baker noted that in the case of the four trials pending, including the 9/11 trial, no trial start date had been set. (Nor, for that matter, is one expected anytime soon.) Colleen Kelly, whose brother was killed in the attack on the World Trade Center, and who co-founded September 11th Families for Peaceful Tomorrows, asked the committee for “a resolution to the 9/11 cases that provides justice for the deaths of our family members, answers to our questions, accountability for unlawful acts, and a path to closing Guantanamo.”
Those speaking out against closure avoided the focus on justice; they saw survival of the nation in terms of physical safety, not values and principles. Their remarks highlighted the persistent threat that terrorists pose. For them, the dominant fact that applied to the decision about closing Guantanamo was that the nation was still at war, still vulnerable to attacks from al-Qaeda and ISIS, still not ready to restore the laws and norms of yore. The founding director of the National Security Institute at George Mason University, Jamil Jaffer, sounded that alarm, declaring, “We know that our enemies continue to target us. We know that the war on terror continues. The question then is what do we do about these detainees? We know also these detainees currently remaining at Guantanamo Bay, some of them represent the most hardcore, the most committed of the terrorists we’ve captured in this conflict.”
As suggested here, the day’s discussion was not only about Guantanamo. There was a deeper conversation taking place about American democracy and its institutions, a larger canvas signaled at the outset by Durbin. “The story of Guantanamo is a story of a nation that lost its way,” he stated in opening remarks. Retired Marine Maj. Gen. Michael Lehnert, who had set up the detention center in 2002 (and is a central figure in my book The Least Worst Place: Guantanamo’s First 100 Days), provided some of the details in making his ardent case for closure. Lehnert warned about the damage to democracy that the continued existence of the prison inflicted on the nation: “Who gains by keeping Guantanamo open? Not America. Those who would harm us are the ones who gain. They point to the existence of Guantanamo as proof that America is not a nation of laws. They use Guantanamo as a recruiting tool. They do not want us to close Guantanamo.”
Katya Jestin, a civilian Gitmo defense attorney, expanded on Lehnert’s remarks. “Through my experience as a prosecutor,” she testified, “I developed a deep respect for the rule of law, and there can be no serious dispute in 2021 that Guantanamo is a failure. It harms our national security, undermines the rule of law, and weakens our international standing.”
Sen. Dick Durbin: “The story of Guantanamo is a story of a nation that lost its way.”
Those who opposed closure did not shy away from this debate. “When we consider what to do with the remaining 39 individuals,” Jaffer testified, “we must ensure that the American people are fully and adequately protected. If we think about bringing these detainees to the United States, we must ask ourselves, what rights will they gain under our laws? What opportunities will they have that they don’t have today? We know that at Guantanamo Bay, the Supreme Court has said, these detainees have the right to habeas corpus, but they have no other rights under our Constitution.” Pushing further the clear divide between constituencies in the U.S., Sen. John Cornyn placed the burden of the initial deviations from law and justice on the American people. “The American people,” he declared, “demanded a response [to the attacks of 9/11] and the American people demanded that we stop future terrorist attacks.”
Like a soundtrack playing quietly in the background, you could hear the trauma of recent times resonating far outside the confines of Guantanamo Bay. The post-9/11 detentions are only part of a greater conversation that now besets the nation, on the sometimes opposing claims of law and security, in the aftermath of the George Floyd murder as well as in the debates surrounding the trials of Kyle Rittenhouse and the three men recently convicted of killing Ahmaud Arbery. In these debates, Guantanamo is front and center in the battle between those who see the United States as a country of laws and those who see laws within a political context, there to be criticized and pushed aside at will.
Ironically, in the midst of this broader challenge to American institutions and the rule of law, there has been movement within the courts recognizing the wrongful abandonment of the law at Guantanamo.
In late September, a federal court agreed for the first time to consider whether Guantanamo detainees might in fact have the right to due process. Several weeks later, a Supreme Court hearing considered whether torture at the hands of Americans could become part of the court record in a case filed in a court in Poland. Two weeks later, a federal judge ruled that one of the remaining 27 Guantanamo detainees had been held illegally for the last five years. And at Guantanamo, a military jury called for clemency for a detainee who had pled guilty nine years earlier and who had cooperated with the government as part of his plea deal. In the words of the hand-written appeal, signed by seven of eight jurors, the treatment of Majid Khan, who had been deprived of food and water, beaten, hung naked from shackles, doused with ice water, sexually assaulted, and waterboarded, was “an affront to American values and concept of Justice.”
Within the Biden administration, however, any hint of similar steps has not been apparent. As Durbin revealed at the hearing, he had written to Attorney General Merrick Garland as early as July, urging the administration “to revisit the Justice Department’s defense of the government’s authority to indefinitely hold detainees without charge or trial and without due process at Guantanamo.” To date, Durbin said, he has yet to receive a response. Declaring himself to be “disappointed,” the senator also chastised the administration for not sending a representative to the hearing.
Durbin’s hearing also went largely unnoticed by the press and the public. Only two major media outlets covered it. Nor, as of this writing, has the transcript been made publicly available. For those who witnessed the hearing, however, it was a moment to take note of—for it clarified in no uncertain terms the stakes: namely, that a forever prison that exists outside of American institutions of justice and the law is not as separate from the larger question of who we are as a nation as we might think.
Author’s note: The official transcript of the hearing has not yet been made publicly available. These quotations are from the video of the session, which is available here.
