What's Next For Guantanamo?

The Guantanamo horror show. Prisoners on a hunger strike and big questions about justice and what to do with the detainees.

The American prison at Guantanamo has come to stand for so many moral trade-offs the United States has made in the years since 9/11.

George Bush filled it but did not empty it. Barack Obama promised to close it but has not followed through. Congress has made it complicated. Even prisoners cleared for exit have been going nowhere.

Now, inmates at Guantanamo have turned again to hunger strike. In return, they are force-fed. Held without charges.

It needs to end, to close, said the president again last week. But how?

Up next On Point: Confronting Guantanamo.
-- Tom Ashbrook

Carol Rosenberg, reporter for the Miami Herald covering the U.S. Navy base at Guantanamo, Cuba. (@carolrosenberg)

Daniel Klaidman, national political correspondent for The Daily Beast. Author of "Kill Or Capture: The War On Terror And The Soul Of The Obama Presidency" — read the book's prologue (PDF). (@dklaidman)

John Hutson, retired Navy Rear Admiral, attorney and judge advocate of the U.S. Navy. Dean and President Emeritus of the University of New Hampshire School of Law.

Ben Wittes, senior fellow at the Brookings Institution. Co-founder and editor-in-chief of the blog Lawfare. (@benjaminwittes)

Carol Rosenberg, who recently visited Guantanamo, detailed the conditions at the detention facility. Listen to her full interview here, with some highlights below:

As of Monday morning, Rosenberg said 100 prisoners were on hunger strike, with nearly a quarter being force fed.

Prior to the strike, many detainees lived communally.

"The doctrine of communal was keep the two sides apart. Keep the men who are the prisoners managing their own lives and keep the guards on the outside to make sure nothing goes wrong," Rosenberg said. "It was more of a doctrine of 'if you behave on your side, we'll behave on our side.'"

But on February 6, there was a shakedown, Rosenberg explained. Detainees claim their cells and personal belongings — including their Korans — were aggressively searched. The military says they followed usual procedures.

The hunger strike began, with lockdown quickly following.

"More than 100 men individually locked into cells up to 22 hours a day, 24 if they refuse recreation time, living alone, eating alone, praying alone. If they get a soccer ball, they're inside an enclosure, a cage, kicking that soccer ball alone," Rosenberg said. "What we have now at Gitmo is lockdown and this hunger strike — the hunger strike first and the lockdown now to manage it."

In total, 86 detainees have been cleared for transfer or release, but they continue to be held at Guantanamo. Daniel Klaidman explained how that's possible:

I think the principle legal or legislative road block is a law that's been passed for a couple of years now in the Defense Authorization Act, which puts some restrictions on transferring even those 86 who have been cleared for transfer or release. What Congress essentially did a couple of years ago was to say that the defense secretary would have to certify that if they released these people, there was really no danger of them committing acts of terrorism, striking back that the United States. There could be waivers, but it was a very high burden and a very onerous restriction. That's been loosened somewhat. And so people are now saying that the president simply could direct the Secretary of Defense to issue those waivers and transfer or release some or all of the 86 who are still there but who have been cleared for release.

It gets complicated, as Carol Rosenberg alluded to.  There are the 56 Yemenese who the president decided on his own could not be transferred back to Yemen because of the unstable situation there, the existence of the al Qaeda affiliate there, the inability of the government in Yemen to handle such a large number of potential jihadis returning to Yemen. But there are ways around that, and I think the administration is now once again trying to figure out whether they can figure out the solution to return the Yemenese, for example.

There are 46 detainees who are being held indefinitely at Guantanamo. John Hutson reflected on the predicament, emphasizing that Guantanamo should be closed:

What's the alternative? Not closing it? Fifty years from now are we going to have 166 very old men still doddering around in Guantanamo? I think there's not an alternative. It's a Hobson's choice — there's not a real alternative. We have to close it down.

In order to do that, it's a three-step process. We're going to have to release the people that we can release, transfer other people and prosecute the remainder. The idea of holding even 46 people — we always use the word "indefinitely" because I think it's a little less harsh than "forever." That's the real word. Can we imprison them? The United States of America where justice is our greatest asset, can we imprison people in what is essentially an American gulag for life? That just isn't an alternative.

You used a very nice phrase — "the balance of threat." I can't prove it but I know intuitively that we are creating more terrorists at the other end of the pipeline than the 166 or 46 or whatever the number is that we want to use because of the existence of Guantanamo and that the United States of America is detaining people — shall we say nicely — indefinitely.

We need to operate here I think from a position of strength and courage and not from weakness and fear, which is what for me Guantanamo represents.

Ben Wittes said the United States is legally authorized to continue keeping prisoners at Guantanamo:

The laws of war entitle you to detain people. They don't say you have to keep bringing people to the same facility. They say you're allowed to detain people while hostilities continue. It's a very simple principle. The principle is you're entitled to neutralize the enemy and detention is a less robust and less costly to liberty way of doing that than the other way you do it in war, which is killing people.

And so I don't have a problem with the idea that the United States would detain people at Guantanamo while hostilities continue. I think as you reach that point where hostilities can be said to be over, I think you do reach some very very difficult questions about what to do with people who may be expected to restart hostilities if released, but you're also not in a position to bring to trial.

I would like to say one thing about a certain group — the people you can't expect to bring to trial but are really dangerous. Some of them are mid-level al Qaeda operatives. Some of them are not. Some of them are very senior al Qaeda operatives whose crimes may not have been committed against us but against some other country or who came out of the CIA program and are therefore subject to very serious mistreatment...as long as we have a plausible legal basis on which to hold them, I want to do that. I agree at the point at which you're reached the end of the conflict, the end of hostilities, you have some very hard choices to make there. But as long as hostilities are continuing and we have the legal authority to detain people associated at a very senior level with atrocities of that magnitude, I am not going to run away from that.

Foreign Policy: How To Close Guantanamo — "President Barack Obama finally broke his long silence on Tuesday on the need to close Guantanamo. Echoing comments he made four years ago — when, on his second day in office he promised to close the facility within a year -- he said 'Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient...It needs to be closed.'"

The Guardian: U.S. Drone Strikes Being Used As Alternative To Guantánamo, Lawyer Says — "The lawyer who first drew up White House policy on lethal drone strikes has accused the Obama administration of overusing them because of its reluctance to capture prisoners that would otherwise have to be sent to Guantánamo Bay."

The Washington Post: Guantanamo Hunger Strike Renews Debates Over Indefinite Detention — "Twice a day at the military detention center at Guantanamo Bay, Cuba, guards take a group of detainees from their cells, one at a time, to a camp clinic or a private room on their block. The detainees are offered a hot meal or a liquid nutritional supplement, and, if they refuse, they are strapped into a chair. A nurse then passes a tube through their noses and down into their stomachs; for one to two hours, they are fed a drip of Ensure while a Navy corpsman watches."