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What’s holding up the closure of Guantanamo Bay?

June 11, 2014 at 6:27 PM EST
The exchange of five Taliban prisoners for Sgt. Bowe Bergdahl has raised larger questions about prisoners being transferred from Guantanamo Bay. In all, 149 detainees from 19 countries still remain at the prison camp. For debate on what’s preventing the closure of the detention facility, Judy Woodruff turns to Benjamin Wittes of the Brookings Institution and Baher Azmy of the Center for Constitutional Rights.
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JUDY WOODRUFF: So, where do things stand at Guantanamo today? In all, 149 detainees still remain at the prison camp from 19 different countries; 78 have been cleared for transfer or repatriation to their homelands. Of the 71 detainees not cleared for transfer, the Department of Defense expects 20 will be prosecuted before military commissions.

The 51 remaining prisoners have been deemed by the administration as too dangerous to release; however, there is not enough evidence to charge them with specific crimes.

To sort through these numbers, and the complications of closing the detention facility at the Naval base, we get two different views.

Benjamin Wittes is a senior fellow at the Brookings Institution and author of the book “Detention and Denial: The Case for Candor After Guantanamo.” And Baher Azmy, he is legal director at the Center for Constitutional Rights. It’s an organization that currently represents 10 detainees at the prison.

And we welcome you both.

So let’s start with the 78 detainees who have been cleared for transfer or repatriation to their homelands.

And let me ask you this, Baher Azmy. Why haven’t they have been released? What’s holding this up?

BAHER AZMY, Center for Constitutional Rights: What’s holding it up is simply a failure of political will from the Obama administration.

He has been vested for years with authority to transfer individuals from Guantanamo. The only current restraint is that he gives Congress 30 days’ notice prior to transfer and that the Defense Department makes certain representations to ensure that the transfer won’t jeopardize national security, representations that the Obama administration has been making for years in advance of any transfer.

So there are no serious political or legal obstacles to transfer. It’s simply a function of political will on the Obama administration. Just it seems to me that, given — this recent kerfuffle about Bergdahl demonstrates the president can’t win no matter what if he’s trying to satisfy his Republican opponents, and so he should just simply act on his commitment to close the facility and do so soon.

JUDY WOODRUFF: Well, and I want to get to that larger point in a minute.

But, first, Ben Wittes, what about those 78 who are cleared to either go home or go somewhere else? Do you agree it’s a matter of political will?

BENJAMIN WITTES, Brookings Institution: It’s partly a matter of political will, but there are additional factors.

When you clear somebody for release or transfer, that’s generally not an unconditional clearance. It’s not like, oh, this person is completely harmless, so let’s just set them free. There’s usually a clearance conditional on certain security arrangements being made with the country that’s going to receive them.

That is, you have to find a country that’s willing to receive them, that’s willing to treat them appropriately and that’s willing to keep track of them, and those arrangements can be difficult to make, they can be complicated, and particularly when you’re dealing — a lot of these people are from Yemen. We have had a very, very hard time getting the Yemeni government to make assurances that we can take seriously as to what will happen to people when they come home.

JUDY WOODRUFF: So, you’re saying there are practical reasons why it hasn’t happened; it’s not just the political?

BENJAMIN WITTES: Each repatriation or resettlement takes a very delicate negotiation and set of arrangements, and those are hard and they sometimes take a lot of time, and some of them have not been possible to do.

JUDY WOODRUFF: Well, Baher Azmy, it sounds like he’s saying it’s more than just political will, there are some real complications.

But I do want to turn you to these other detainees. I think it’s 71 who are not cleared for transfer, 20 of them going before military commissions; 50-some, what we’re told is that they’re in this ambiguous situation. They are dangerous, but there’s not enough evidence to charge them with a specific crime. What should happen to them?

BAHER AZMY: Well, they should either be charged with a crime or released. I mean, our position is that this notion that some are — cannot be tried, but are too dangerous, is a null set.

In our constitutional system, a system grounded on rationality and international human rights, one cannot be detained unless you have committed a crime, and that’s the basis to assess dangerousness, not by looking into some abstract prediction about darkness in their heart or who their connections were 12 years ago. And if we remain faithful to our constitutional traditions, individuals should either be tried or sent home.

JUDY WOODRUFF: So, you’re arguing they should be released?

BAHER AZMY: Yes, unless they are charged either through a fair criminal process in an Article 3 court or through the ill-fated — eventually ill-fated military commissions. Yes, they can — we have no authority to detain those individuals.

JUDY WOODRUFF: Ben Wittes, what about this other group?

BENJAMIN WITTES: Well, so — what Baher said right now, just now, is an articulation of the Center for Constitutional Rights’ position. It’s not an articulation of U.S. law.

The courts have repeatedly confronted the question of whether criminal charges are the only lawful basis on which to hold Guantanamo detainees, and they have repeatedly said that, in an armed conflict — and there is an armed conflict under U.S. law between the United States and al-Qaida and the Taliban — it is lawful to hold the enemy until the end of hostilities.

And that is the basis, not criminal charges, on which people at Guantanamo are being held, and that’s an assessment — based on an assessment of dangerousness. And so there is a group within that 71 against whom charges have either been filed or are expected, but that’s not the basis on which all of them are being held or under the law need to be held.

JUDY WOODRUFF: Well, just quickly, how much of this gets resolved, Baher Azmy, when the U.S. withdraws from Afghanistan, when the conflict ends there?

BAHER AZMY: Well, even under Ben’s articulation of the law, the end of the hostilities in Afghanistan represents the end point of the authority to detain individuals who, as he suggests, we claim hold pursuant to our authority to prevent a return to active hostilities.

And the Supreme Court explained in the 2004 decision in Hamdi that when active hostilities end, the authority to detain ends.

JUDY WOODRUFF: OK.

So bottom line here, to both of you, what — how do you resolve this? I mean, is there a way to get to resolve it short of the end of the war? Even after the war ends, it sounds like there is still ambiguity.

BENJAMIN WITTES: So, look, you have got to try the people you can try. The people who have committed crimes, and you can prove that, you need to bring them to trial.

The people who you can set free and whom you can transfer, you need to work to get that done. There is a residual population, some of whom, particularly the Taliban members, as Baher says, you may have to free at the end of hostilities in Afghanistan.

But even beyond that, there’s a group of al-Qaida people against whom you’re not going to press charges whom there’s a long-term detention problem, and that’s a very hard problem.

JUDY WOODRUFF: And just a final word, Baher Azmy. Is that what you see, just a hard problem going on indefinitely?

BAHER AZMY: Well, we start with the easy problem, which is starting to repatriate or transfer to third countries those 78 already who have already been cleared for release.

I don’t think the possibility of abstract, challenging legal questions on the back end should prevent us from making serious efforts to close the prison now.

JUDY WOODRUFF: So there is a difference of view. We’re not going to resolve it today, but we want to — we want to give you both an opportunity to express your point of view.

Baher Azmy, we thank you.

Ben Wittes, thank you.

BENJAMIN WITTES: Thank you.