Senate Armed Services Committee Approves Guantanamo Transfer Bill

It now appears that the government is taking steps toward lightening the burden on Guantanamo Bay, and perhaps even closing it.  Yesterday, The New York Times reported that the Senate Armed Services Committee approved the National Defense Authorization Act for 2014.  The bill will lift a ban on the transfer of detainees to the United States for the purpose of prosecution.  The bill also pertains to transferring detainees for medical reasons, or even for continued detention in American prisons.

Since 2011, the U.S. Secretary of Defense has been required to certify that a list of conditions have been met before a detainee could be transferred.  Most of the conditions were extra security measures that essentially stopped the government from even attempting transfers, even for low-security risk detainees.  Under the new bill, the checklist would be done away with and the Secretary of Defense would only need to certify that the transfer would be in the best interest of national security.  This would be a much more flexible process that would probably lead to more transfers and possibly more trials for detainees.

Although the bill has been approved, it still has a long way to go before it becomes a law.  No actual vote has been held; members of the Committee have only agreed to debate the bill’s provisions on the Senate floor.  A rival bill has also been drafted by Republicans in the House of Representatives that would maintain the blanketed ban on transfers for any reason whatsoever.

So what are the benefits of the bill?  First of all, it might speed up the process for detainees who are actually being charged with crimes.  Military tribunals are notoriously slow, and we often have to wait years before we see a verdict in these trials.  If we opened up our traditional court system, we might see quicker results.  That’s not to say that our traditional system is lightning quick, but if we remove some of the barriers that prosecutors and defense attorneys face in military tribunals we would probably see a lot more efficiency.

Aside from that, the cost of providing medical treatment to detainees at Guantanamo can be astronomical.  Medical expenses are high as it is, but when you factor in transportation costs for medical personnel and equipment, they become ridiculous.  We would not only be able to cut our bottom line if we were able to provide quicker, better, and cheaper medical attention for detainees, but we would probably be able to quiet some of the human rights concerns that have stemmed from force-feeding detainees that have been on hunger strikes for months now.

Overall, there are a lot of positives to be found in the bill.  President Obama’s initial promise to close Guantanamo a year into his presidency has turned into a lengthy debacle and it doesn’t look like the government will be able to close it in one fell swoop.  If we make the decision to close it, it’s going to be a long process.  And even if this bill were voted into law it’s probably unlikely that high-value detainees would be transferred due to security issues.    So is this bill just a small step towards the slow phasing-out of Guantanamo Bay?  Yes.  But it’s a step nonetheless, and a step we can build on.

Chris Whitten, Research Fellow
Center for Policy and Research

Center for Policy and Research Featured in “The New Yorker”

Yesterday, The New Yorker ran an article featuring the research of Seton Hall Law professors Jonathan Hafetz and Mark Denbeaux and the Center for Policy and Research Fellows.  The article, “The Dark Ages: A Critic at Large,” details the origins of the War on Terror and analyzes how due process and other legal matters have changed over time. The article draws on two books written by Professor Hafetz, “Habeas Corpus After 9/11:  Confronting America’s New Global Detention System,” and “The Guantanamo Lawyers:  Inside a Prison, Outside the Law,” which was co-edited by Professor Denbeaux.

The article brings to light the brutal tactics used by the DOD in interrogations of detainees at Guantanamo and other military installations throughout the world.  It also points out that the Bush administration was not held accountable for these alleged human rights abuses, instead choosing to create rules and procedures ad hoc to work around existing international and domestic laws.  In addition to citing Professor Hafetz and Professor Denbeaux’s work, the article references the Center for Policy & Research’s flagship “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data,” noting that only five per cent of Guantanamo detainees had been arrested by U.S. forces.  Pakistani and Northern Alliance forces had captured forty-seven per cent based on bounties issued by the U.S. military.

In addition to this reference, the Guantanamo Reports have been introduced into the Congressional record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament.  While the Center for Policy and Research is still working to uncover information regarding Guantanamo Bay and the treatment of detainees, work done by its students and faculty continues to affect public opinion and policy change.

Christopher Whitten, Research Fellow
Center for Policy & Research

“If the detainee dies you’re doing it wrong.”

One of the most quotable phrases coming out of Bush’s Global War on Terrorism now appears to be highly questionable. Then-CIA lawyer Jonathan Fredman was quoted by Senator Carl Levin, Chair of the Senate Armed Services Committee, as having said that the standard of detainee treatment during interrogations was “basically subject to perception. If the detainee dies you’re doing it wrong.”

This quote continues to be used in articles and books, but reporting by Stuart Taylor, Jr. (no relation) in the National Journal and by Benjamin Wittes of Lawfare sheds light on the shaky ground on which it rests. First, Fredman has denied the veracity of the quote for about as long as it has been public. The quote comes from the minutes of a staff meeting at Guantanamo in which Fredman was asked about the legal limits placed on interrogation by the federal anti-torture statute. However, much of the minutes are of questionable reliability, and in some cases patently absurd (for example, a barely understandable quote that appears to claim that Turkey considers any interrogation that “results in the subject betraying his comrades” to be torture).

It is important to note, however, that not even Fredman himself denies all of the statements attributed to him in the minutes. Perhaps the most telling of the statements which he  apparently has not denied include his reference to standard set by the Office of Legal Council, that the torture statute only bars physical pain so severe that it may cause permanent damage to major organs, or mental pain so severe that it may permanently alter the personality or senses of the detainee.

So, whatever exculpatory effect the questionability of the oft-quoted statement may have, it is important that these minutes, like any internal document that is not vetted and edited, be read with a critical eye.

Paul Taylor, Senior Research Fellow
Center for Policy & Research