Senate Panel Debates the Close of Guantanamo

Yesterday afternoon, for the first time since 2009, a Senate committee took to the issue of closing the Guantanamo detention center. The hearing was called by Sen. Richard Durbin (D-Illinois), the Senate’s No. 2 Democrat and chairman of the Senate Judiciary subcommittee on the Constitution, and Civil and Human Rights. In his opening remarks, Sen. Durbin referred to the prison as a sad chapter in American history, a place he had “never imagined in 2013… would still be open.”

“Every day it remains open, Guantanamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights.” – Sen. Durbin

Sen. Durbin has long been critical of Guantanamo Bay. In 2009 he stated that he would be OK with accepting detainees into the Illinois supermax facility. Earlier this month, along with California Sen. Dianne Feinstein, Sen. Durbin asked President Obama to order the Pentagon to stop routinely force-feeding the hunger strikers, challenging the military claim that the enteral feedings were humane and modeled after the federal Bureau of Prisons.

Opposing Sen. Durbin’s request to close the prison, Senator Ted Cruz (R-Texas) harped on the threat of detainee recidivism. Quoting from a recent study by the Director of National Intelligence which found that 28 percent of detainees previously released from Guantanamo were suspected or confirmed to have joined up with terrorist groups upon leaving US custody, Sen. Cruz emphasized the risk we face by releasing the detainees. In agreement, Center for Security Policy president Frank Gaffney stated that moving prisoners from Guantanamo to the U.S. could result in attacks on domestic prisons as well as the spread of radical Islam to other inmates.

As of now, little progress has been made on the closing of Guantanamo. Congress appears to be divided, even among its own factions. I tend to agree with Sen. Durbin and propose that we close Guantanamo. We give the detainee’s their day in court and either send them back to their country of origin if that country is willing to accept them, or we place them in supermax prisons within the United States. Mr. Gaffney’s concerns are ludicrous. We hold hundreds of terrorists in supermax facilities – to my knowledge, there have been no attacks or major issues stemming from the domestic detention of detainees. In fact, a detainee in the general population of a prison will probably have more to fear from us than we will of him. Furthermore, should we allow the detainees to return to their country of origin and something goes wrong – another Abu Ghraib-type escape or a detainee returning to a terrorist cell – just look at what happened to Saeed al-Shiri. While I am not proposing or endorsing the use of drones, I am pointing out that the Obama administration clearly has no problem finding more permanent solutions when it deems necessary. On top of that, the study Sen. Cruz referred to only took into account the number of detainees associated with militant groups, not the number who have actually engaged in violent activities themselves. If I were to guess, the majority of detainees that we saw fit for release were more concerned with starting families and their lives than plotting more attacks.

So what comes next? Most likely nothing. The Pentagon finally announced that they will be establishing Periodic Review Boards – two years after the Obama administration called for their creation (no official dates as of yet). Force feeding and genital searches are still a go. Another day, another story. Maybe next time there is a senate hearing, the Obama administration will actually show up.

Alexandra Kutner, Research Fellow
Center for Policy and Research

“Your Drones! They’ll Have to Wait Outside!”

Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.

Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.

There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,

“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”

Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.

However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.

But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.

Paul Taylor, Senior Research Fellow
Center for Policy & Research