More on Closing Guantanamo

On Monday, I posted about the call by Bush Administration top national security lawyer, John Bellinger, to close the detention facility at Guantanamo.  Today, Paul Lewis, the former Special Envoy for Guantanamo Detention at the Department of Defense, has an excellent post making the same argument.  Paul, by the way, served in both the Bush and Obama Administrations.  The most interesting point he makes is that virtually every Defense Department official who has lived with the issue has come to the same conclusion:

We are all familiar with the primary arguments to close GTMO: it costs too much, it is a recruiting tool and propaganda tool for terrorists (a conclusion reached by both President Bush and President Obama), and it is disdained by the international community. But beyond these individual factors, it is crucially important that the national security leadership of both the Bush and Obama Administration reached the same conclusion. In the best judgement of both Administrations, GTMO hurt us more than it helped us. Both presidents, five secretaries of Defense (Rumsfeld, Gates, Panetta, Hagel, and Carter), and four secretaries of State (Powell, Rice, Clinton, and Kerry) reached the same conclusion. (Yes, even Secretary of Defense Donald Rumsfeld ultimately concluded GTMO should be closed—if an alternative location were selected.)

I urge the new Administration to reach the same conclusion. As John states, before bringing new detainees to GTMO, the new Administration would be wise to consult with the bipartisan national security experts from both previous Administrations. This list of experts includes a long list of retired military leaders, including former Marine Commandant, Gen. Charles Krulak and former CENTCOM Commander General Joseph Hoar.

As Lewis explains, this does not mean that we release all of the remaining 41 detainee.  He advocates moving them to a federal detention facility in the United States, continuing to securely place those who have approved for transfer, and continuing to use the Periodic Review Board process to evaluate whether others can be safely transferred as well.

Read the entire article here.

Again, by way of full disclosure, I represent one of the detainees at Guantanamo.

John Bellinger on Why Guantanamo Should Be Closed

My law school classmate and current law partner, John Bellinger,  was the Legal Adviser to the NSC during the Bush Administration during the time when the decision was made to open the detention center at Guantanamo.  On Sunday, he posted an important essay on the Lawfare Blog that explains why the Guantanamo Bay detention facility was opened, and why it now should be closed.  Here is how John explains why Guantanamo should be closed:

Although it may be politically popular with some of the Administration’s supporters, it would be a mistake for the Trump Administration to try to repopulate Guantanamo with new detainees from the Islamic State or Al Qaida-affiliated groups, as President Trump and Attorney General Sessions have said they want to do.   The Trump Administration should learn from the bitter legal and policy experiences of the Bush Administration: adding new detainees to Guantanamo will produce more (and more risky) lawsuits; difficult practical problems down the road as to what to do with the detainees; and unnecessary friction with allies.  Guantanamo detainees have prevailed in numerous challenges to their detention in federal courts (including four cases before the Supreme Court).   Any new ISIS detainees in Guantanamo would undoubtedly claim in habeas petitions that the 2001 AUMF detention does not authorize their detention.  As Jack Goldsmith has pointed out, “it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF does not extend to ISIL.”   And as I explained in my Lloyd Cutler lecture last fall, our allies are likely to cut back on intelligence, law enforcement, and military cooperation if they believe the United States is not acting consistent with international law and our shared democratic values.

President Trump and Attorney General Sessions should instead consider  a “Nixon to China” policy of seeking legislation that would allow the President to close Guantanamo and transfer the remaining detainees to their own governments and to one or more military and/or federal detention facilities in the United States for continued detention and potential prosecution.  It is highly unlikely that any detainee could escape from a maximum security prison in the United States.  Although it is possible that detainees held in the United States could bring additional legal challenges to their detention, detainees have already been successful in legal challenges while detained in Guantanamo; it will be difficult for the remaining detainees who have not been cleared for release to persuade a federal court that they should be released or given immigration rights.   President Trump, Attorney General Sessions, Secretaries Mattis and Kelly, CIA Director Pompeo and DNI-designate Coats should consult with the experienced lawyers and policy experts in their departments about the risks of costs and benefits of Guantanamo.  They are likely to find that repopulating Guantanamo will produce more costs and risks than benefits and that it would be both preferable, and possible, to achieve President Bush’s goal of closing Guantanamo without compromising security.

The entire post is well worth a read--particularly the history on why the detention facility was created in the first place.  You can read it here.

Again, by way of full disclosure, I represent one of the remaining detainees at Guantanamo.

Trump Tweets and Guantanamo Recidivism

I don't want to turn this blog into yet another fact-checking site, but the following tweet by President Trump struck me as a "teachable moment" on an important topic:

122 vicious prisoners, released by the Obama Administration from Gitmo, have returned to the battlefield. Just another terrible decision!

— Donald J. Trump (@realDonaldTrump) March 7, 2017

Is this true?  Not really. The source of this tweet is a report by the Office of the Director of National Intelligence  that was released yesterday.  It provides the following chart:

Even a cursory review of the chart shows that Trump's tweet is false.  Of the 122 released detainees "confirmed of reengaging", the vast majority--113--were released during the Bush Administration and NOT by President Obama.  This is not  a small mistake, by the way--it is Huge.  Sad.

I think the real story here is the large drop in recidivism after January 2009--from 17.6% to 5.6%.  This is no accident.  The Obama Administration and Congress together created a far more rigorous process for reviewing whether Guantanamo detainees still presented a threat to our national security.  A Periodic Review Board, made of of senior officials from every national security agency now carefully reviews each detainee.  Once they agree that the detainee is releasable, both the State Department and the Defense Department work with the country where the detainee will go to ensure safeguards are in place.  Finally, the Secretary of Defense must personally determine that the safeguards are sufficient to ensure no recidivism.

This process was actually put in place in 2011, and it would interesting to see if the recidivism post-2011 dropped even further.  Sadly, ODNI did not do this analysis.

Steve Vladeck of the University of Texas Law School has a very good post explaining why even these ODNI numbers inflate actual recidivism:

In the above-referenced report, ODNI counted a detainee as engaging in recidivism whenever there was “A preponderance of information which identifies a specific former GTMO detainee as directly involved in terrorist or insurgent activities.” And ODNI’s basis for suspicions involve “plausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities.” There are lots of problems with this definition, but here are three: First, it assumes, contra what we now know, that every Guantánamo detainee had previously been engaged in terrorist or insurgent activities (hence the “re” in recidivism). Second, it treats as “recidivism” involvement in amorphous “activities,” without any necessary connection to combat or battlefield activities (or, frankly, the United States)–such that one can be “confirmed of reengaging” through information that places them in the wrong place at the wrong time, without any clearer connection to hostilities or any evidence whatsoever that they “returned to the battlefield,” or did so in the context of the conflict between the United States and al Qaeda and its affiliates. Third, there’s no way to test these numbers, since they’re based upon classified intelligence and “a preponderance of information.” In other words, an unsubstantiated intelligence report that places a former detainee in the wrong part of Yemen at the wrong time can, by itself, apparently be the basis for a determination that the detainee is “confirmed of reengaging.” Intelligence reports have value, but we ought to be careful not to place too much weight on them when reaching broader conclusions about sensitive topics like recidivism.

Read it all here.

By way of full disclosure, I represent one of the Guantanamo detainees now in the Periodic Review Process.