Above photo: A composite image of a prisoner in Camp 6 at Guantánamo, and President Biden.
In a recent op-ed for The Hill, Anthony Lake, national security adviser to President Clinton from 1993 to 1997, and our co-founder Tom Wilner, who was counsel of record to Guantánamo detainees in the two Supreme Court cases establishing their right to habeas corpus and in the case establishing their right to legal counsel, made a powerful case for the closure of the prison at Guantánamo Bay, which we’re pleased to be cross-posting below.
Yesterday marked the end of the first 100 days of Joe Biden’s presidency, and while we’re aware that the new administration has had a huge workload to deal with after four ruinous years of the Trump presidency, and with the unprecedented challenge of dealing with Covid-19, it remains imperative that the scandal of the prison at Guantánamo is dealt with sooner rather than later, because its continued existence is an affront to all of the U.S.’s cherished notions of itself as a country that respects the rule of law.
Using, as a springboard, the recent release of the movie “The Mauritanian,” which tells the story of former Guantánamo prisoner, torture victim and best-selling author Mohamedou Ould Slahi, Lake and Wilner run through the reasons why Guantánamo’s continued existence is so shameful and counter-productive — a hugely expensive offshore prison where the U.S. “detains men indefinitely, without charge or trial or the basic protections of due process of law,” whose continued existence also damages U.S. national security by inflaming tensions within the Muslim world.
To date, although we have had reassurances from within the administration that a “robust” review of Guantánamo will take place, and that its deliberations will be completed before the end of Biden’s four-year term, Lake and Wilner rightly complain that the process “should not take nearly that long.” Of the 40 men still held at Guantánamo, only 12 have been charged with crimes, and they, the authors state, should be transferred to the U.S. mainland to face federal court trials — because, unlike the broken military commission system at Guantánamo, federal courts have a proven track record of successfully prosecuting those accused of terrorism, which they have been doing throughout Guantánamo’s long and lawless existence.
Lake and Wilner also call on the other 28 men to be freed “unless it can be shown that doing so poses a serious and imminent risk to our national security.” The authors suggest that defense secretary Lloyd Austin “should be directed to appoint independent and impartial fact-finders (e.g., retired military judges, retired federal or state court judges or experienced members of the bar) to make that finding,” although it should be noted, of course, that to bring to an end the shameful policy of indefinite imprisonment without charge or trial, anyone identified as posing “a serious and imminent risk to our national security” would also need to be charged and tried in federal court.
However, the fact that none of these men have been charged to date — despite being held for between 13 and 19 years without charge or trial — indicates that the U.S. authorities have been unable to construct a credible case against them.
Nor, indeed, are these potentially challenging individuals particularly numerous. Of the 28 men still held who have not been charged, six were unanimously approved for release by high-level U.S. government review processes under President Obama (and one under Donald Trump), and many others are either the victims of extreme and unacceptable caution on the part of the authorities (held not because of what they are alleged to have done before their capture, but because of their behavior at Guantánamo), or have had their significance routinely and systematically exaggerated, or are even cases of mistaken identity.
The op-ed is posted below, and we hope you have time to read it, and that you’ll share it if you find it useful.
Closing Guantánamo is long overdue
by Anthony Lake and Thomas Wilner, The Hill, April 25, 2021
The movie “The Mauritanian” tells the story of Mohamedou Slahi, a man taken from his home in Mauritania shortly after 9/11 and transported halfway around the world to prison in Guantánamo. There he was tortured and detained for more than 14 years, despite the absence of evidence of wrongdoing and two lie detector tests confirming his innocence. The night he was arrested was the last time he saw his mother and older brother, both of whom died while he was in captivity. His story is not dissimilar to hundreds of other Guantánamo detainees.
We don’t hear much about the Guantánamo Bay detention center these days. It was a hot-button issue 12 years ago. Both Barack Obama and John McCain had called the prison “un-American” during their presidential campaigns, and Obama signed an order in his first days in the White House promising to close the prison within a year. But that never happened, and now, 12 years later, Guantánamo remains open and largely ignored. Perhaps the new film can rekindle some outrage that our nation still operates an offshore prison where it detains men indefinitely, without charge or trial or the basic protections of due process of law.
More than a stain on our nation, the prison burdens our taxpayers and damages our national security.
Our enemies continue to use it effectively to recruit disciples to their cause. And to keep it open, we spend well over half a billion dollars a year, almost $15 million for each of the prisoners there, more than 170 times what it would cost to detain them in a maximum-security prison in the United States.
Despite the cost, Guantánamo has failed miserably, delivering justice neither to the victims of 9/11 and their families or to hundreds of prisoners. Almost 20 years after 9/11, none of the major perpetrators of that horrible crime has been brought to justice. The most important cases remain stuck in pre-trial proceedings before special Guantánamo military commissions, and are still years away from trial. That is an outrage.
President Biden is absolutely right in reaffirming the commitment to close the prison. He has established a commission to study the issue and has given it up to four years to report to him.
It should not take nearly that long.
Only 40 prisoners remain at Guantánamo, after more than 700 were transferred out by Presidents Bush and Obama. Only 12 of those remaining — less than a third — are accused of engaging in or materially supporting terrorist activities.
These men should be transferred to the United States for trial before our federal courts. They inflicted their evil in this country — murdering innocent American citizens — and this is where they should face justice. Our federal courts are fully capable of doing that. Since 9/11, more than 650 terrorist suspects have been successfully prosecuted in U.S. federal courts. Trying and punishing these men here does not threaten our national security. U.S. prisons currently hold more than 400 prisoners convicted of terrorist-related crimes, and no prison or locality has faced a terrorist threat as a result.
The other 28 prisoners still at Guantánamo are not accused of engaging in or supporting terrorist acts. Rather, the government claims that these men fought against U.S. and allied troops in Afghanistan almost 20 years ago and they are being detained essentially as prisoners of war. Even were those allegations true — and the detainees never have had the opportunity to contest them through a due process hearing — and even if they provided justification for detaining these men originally, how do we justify continuing to detain them two decades later?
These men should be repatriated promptly unless it can be shown that doing so poses a serious and imminent risk to our national security.
Secretary of Defense Lloyd Austin should be directed to appoint independent and impartial fact-finders (e.g., retired military judges, retired federal or state court judges or experienced members of the bar) to make that finding.
And at long last, the Guantánamo prison, with justice, could be closed.
Sometimes it takes an outsider to remind us who we are or ought to be. Mohamedou Slahi, the Mauritanian, does that for us. Movingly, he forgave his captors for their abuses, explaining at the end of the movie that the same Arabic word means “freedom” and “forgiveness.” He has gained his freedom by forgiving.
As he recently wrote, “The world truly relies on the ‘good’ America, the America dedicated to fairness and justice. We badly need the model of the United States again as a nation dedicated to those principles.”