Closing Time?


Professors Martha Rayner and James A. Cohen say that, despite recent speculation, Guantanamo closure is unlikely in the near future.

When Fordham Law Professor James A. Cohen met last week with one of the two Guantanamo Bay detainees he and Professor Martha Rayner represent, the U.S. military prison was abuzz with speculation about what, if anything, President Obama planned to do to close the controversial facility in his upcoming final year in office.

While the Obama administration has discussed the potential of closing Guantanamo since his election in 2008, the discussion has intensified in recent weeks. However, defense-spending bills, and recent terrorism concerns after the mass shooting in California, have complicated matters.

Obama signed an executive order in January 2009 to close Guantanamo, a prison camp established post-9/11 by the Bush administration. The camp has been widely criticized for what many see as various departures from the rule of law, including indefinite detention without due process, and torture. While the Obama administration initially appeared to prioritize the camp’s closure, the past six and a half years have revealed it to be at the bottom of the president’s to-do list, said Fordham Law Professor Martha Rayner.

Rayner and Cohen, who have represented Guantanamo detainees since 2005, agreed in separate, lengthy interviews over the past week that little has changed in terms of how justice is handled at the prison site, and both expressed doubt its closure would happen under Obama’s watch, despite recent speculation to the contrary.

“Unless he has something to pull out of his hat between now and when he leaves office, it’s going to be very difficult” to close Guantanamo, Cohen said. He noted that Obama’s decision not to use his executive powers to try detainees in federal courts, known as Article III courts, except in one noteworthy instance five years ago, has resulted in a failure to deliver justice.

Stalled Alternatives

Obama’s decisions in the early years of his presidency reduced the likelihood of Guantanamo’s end, Rayner and Cohen said. Now he faces heavy opposition from Congress—and the binding powers of his own pen.

In November, Obama signed the 2015 National Defense Authorization Act, a $607 billion defense-spending bill that includes provisions blocking U.S. supermax prisons from housing detainees. While some White House lawyers have suggested Obama could still send prisoners to facilities like Leavenworth Federal Penitentiary in Kansas, that would be a mistake, Rayner said.

“Whether Obama could still transfer the men­—and if it would still be within the spirit of the law or within his power—it would not set a good precedent to override a clear mandate of Congress,” she said. While Obama has the power to release any of the 107 remaining detainees from the prison camp, Congress has exercised its power to prohibit transfer of prisoners to the United States for further imprisonment.

Martha Rayner

Martha Rayner

The Obama administration has publicly declared its desire to lower the detainee number in an effort to make the case for closure more viable. This plan includes transferring low-risk detainees to other countries for trial and accepting plea agreements from others.

“I think that it’s an artificial number,” Rayner said of the White House announcement to reduce the detainee population to below 100. “Congress doesn’t have any wish to see Obama fulfill his campaign promise to close Guantanamo.”

What often gets overlooked, Rayner said, is that the Obama administration has fought vigorously to keep detainees indefinitely without due process even as it has sought to move them to the United States.

Congress has not received a detailed plan with cost estimates on closing Guantanamo. However, the Wall Street Journal reported earlier this month that the administration rejected a Pentagon plan that would cost $600 million to build a new supermax facility and a justice center for prosecutions.

Cohen said he would be astonished if the United States did not have a secure facility already in existence, military or otherwise, that could hold “high-value” detainees. Additionally, it would be “terribly foolish and wasteful” to build such a supermax facility to hold the 48 detainees who have been cleared for repatriation and are not viewed as security risks.

Infinitesimal Developments

Earlier this month, the Department of Defense reported that a Yemeni national held in Guantanamo for 13 and a half years had been largely determined to be a case of mistaken identity. Such an admission, after the man spent more than a decade locked away with minimal legal recourse to prove his innocence, is an indictment of Guantanamo’s existence, Cohen said.
“You’re not talking about a universe of that many people,” he said, adding that it’s quite possible the United States swept up many others based on mistaken identities when it was paying rival Middle Eastern factions large amounts of money for information leading to possible terrorists in the wake of 9/11.

In March 2011 Obama signed an executive order authorizing Periodic Review Boards that, for the first time, allowed attorneys to advocate on behalf of clients in review hearings. Since 2013, when these defense attorney–attended hearings began, 15 of the 18 detainees who have received decisions have been cleared for release.

While this review board change is noteworthy, Rayner and Cohen agreed that there are still fundamental obstacles to representing clients. Information that detainees share with their own attorneys is classified and cannot be shared with anyone lacking a security clearance. Traveling and the filing of court papers present major challenges, as do time delays between meetings with clients and the approvals needed for the smallest details associated with the detainees.

“There are all sorts of men who have remained at Guantanamo for far too long for all sorts of reasons,” Rayner said. Many are Yemeni nationals who, despite being cleared years ago, remain detained because their home country poses repatriation difficulties and no other country is willing to take them. (Europeans and Australians brought to Guantanamo in the prison’s early days have long since been shipped back to their countries, she noted.)

Congress has also passed legislation making it more difficult to release the men.

“That’s the piece that weighs on our clients,” Rayner said. “This isn’t about merits or what they have or haven’t done. It’s really about politics.”

The deprivation of liberty combined with the indefinite nature of the detention heightens the sting of the incarceration, she noted.

Extrajudicial Site

The Bush administration originally chose Guantanamo Bay not only for its ability to hold men suspected of committing or supporting terrorism but because interrogations occurring there were thought not to be subject to U.S law. Torture—both at secret sites and Guantanamo—carried out by the United States remains a major obstacle to resolving many of the cases in Guantanamo.

“The issue of torture infects Guantanamo in a really intense way, and the failure of the military prosecutors to prosecute these men is very much about torture,” Rayner said. “These trials would have moved forward at a much faster pace if not for torture.”

James Cohen

James Cohen

Ironically, the evidence of torture leads to men being labeled as “too dangerous to release” rather than being prosecuted, Rayner explained. Whether these men could be prosecuted in other countries depends on those countries’ laws, the professors agreed.

Some Guantanamo observers have suggested that the United States has used a military commission system to seek justice against terrorism suspects because U.S. courts would not tolerate the occurrence of torture. The legal concept of attenuation makes that presumption questionable, Cohen explained, noting military commissions are not supposed to be tolerant of torture either, but the perception is they will be under Article III.

GOP presidential candidate Donald Trump has voiced support for reinstating torture practices like waterboarding in the fight against future terror threats. Other GOP candidates have not ruled out the use of torture. Campaign trail suggestions that torture worked in the past or will work in the future is nothing more than pandering to voters, Cohen said.

“The record is very clear out there that waterboarding never resulted in any useful information,” he said. “It sent a very bad message to our allies and other countries.”

Without End?

In 2010, the Obama administration prosecuted Ahmed Khalfan Ghailani for his role in U.S. embassy bombings in Kenya and Tanzania. Ghailani was acquitted on all but one of more than 280 charges of conspiracy and murder. While he received a life sentence without the possibility of parole, the Obama administration viewed the potential of a future acquittal of a terror suspect as a real possibility and decided against going forward with more federal prosecutions of Guantanamo detainees.

Ghailani’s trial and verdict proved a turning point in how Obama and then Attorney General Eric Holder proceeded with the prosecution of Guantanamo detainees—or, more precisely, how they would not proceed with prosecutions in U.S. federal courts.

As a result, one of the Fordham professors’ clients has remained in Guantanamo for 13 years without a charge. He is not an anomaly. Theoretically, these men could remain in the prison for the rest of their lives without being charged with a crime.

While Cohen expressed the opinion that Obama’s legacy on Guantanamo would largely depend on who analyzed it, Rayner was less relativistic: “History will judge Obama harshly on this.”

The irony, Rayner said, is that U.S. leadership didn’t have faith in its own criminal justice system to try the men in civilian courts.

“That decision has proven to be a debacle,” she said.

–Ray Legendre


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