Afghanistan complicates new push to close Guantanamo Bay

The entrance to Camp 1 in Camp Delta by Guantanamo Bay. (Kathleen T. Rhem / Wikimedia Commons)

WASHINGTON (Tribune News Service) – A hearing of the Senate Judiciary Committee on Tuesday made it clear that the withdrawal of troops from Afghanistan this year has further complicated the political, legal and legislative dilemma that is attempting again at Guantánamo Bay Detention Center in Cuba after almost two years to close decades.

The dilemma remains of what the United States should do with prisoners who are not tried but are considered hostile fighters in a war on terrorism that is not over – a balance between justice for the 9/11 terrorist attacks and the Preventing terrorist groups from killing more Americans.

This has helped create an endless loop of Congress and President inaction with few changes, and the facility continues to hold detainees amid a legal gray area caused by their location outside the United States and their establishment as part of a war.

That political struggle now usually plays out in annual spending bills, including an early draft of measures to close the Cuban prison camp for fiscal year 2022, which the Democrats pushed and criticized Republicans.

Illinois chairman Richard J. Durbin opened the hearing on Tuesday with criticism of the Biden administration for failing to respond to its requests for a fresh approach to Guantánamo Bay and refusing to interview a witness on behalf of senators on Tuesday.

And Durbin described the current situation: There are still 39 prisoners in the center, more than two-thirds of them have never been charged with a crime, it costs $ 540 million a year to keep it open, and there is “no end in sight” for it Military commissions stalled in part due to government torture of enemy fighters.

“It saddens me that this hearing is even necessary today,” said Durbin, recalling a 2013 one on the subject. “The story of Guantánamo is the story of a nation that has lost its way.”

But closing Guantánamo means moving these prisoners somewhere. Bringing them to the United States could pose numerous legal challenges related to potential rights with uncertain outcomes, the panel witnesses said, while the release of the prisoners to another country could mean some might start attacks again against the United States .

Jamil Jaffer, the founder and executive director of the National Security Institute, testified that the Taliban, who hosted Osama bin Laden on the day of the 9/11 attacks, have now returned to power in Afghanistan and have not rejected the al-Qaeda terrorist have a group responsible for the 2001 attack.

Another terrorist group called ISIS-K was responsible for the deaths of 13 US soldiers at Kabul airport during the withdrawal of US personnel last summer, Jaffer said.

“Other terrorist groups are also returning to Afghanistan as they see this unregulated area as an opportunity to consolidate their efforts again and to fight the West,” said Jaffer. “The terrorist threat is even worse today, especially because the way we pulled out of Afghanistan.”

South Carolina Republican Senator Lindsey Graham pointed out that five people in the Taliban government were former Guantánamo Bay detainees, including incumbent intelligence and culture ministers.

“And we’re talking about releasing people. This is crazy, ”said Graham. “One thing I can say about the 39 people at GITMO, none of them attacked the United States. And if it’s up to me, none of them will ever do it. ”

Moving inmates to the United States, however, would entail the usual federal judicial system and raise questions about what legal rights they would get, said Charles Stimson, deputy assistant secretary of defense for inmate affairs during the Bush administration.

Unless Congress passed law restricting prisoners’ rights, Stimson said, “There is no doubt that once everyone is on solid ground here, they will challenge all sorts of other aspects of their prisoner-of-war law, including likely illicit lawsuits.” in their personal capacity. ”

Jaffer said it was very likely that inmates would be given a number of rights that they otherwise would not have had in Guantánamo Bay, and the question then is which and how far-reaching.

“Does the fourth amendment hold up? Is the fifth amendment included? How much of it, in what context? What about the right to face witnesses, what about the evidence that is brought to court? ”Said Jaffer. “Much of this evidence was gathered on the battlefield, there is no chain of custody, there are not the usual things that are needed in a federal trial” or other alternative procedures with constitutional protection.

Graham, a former military attorney in the Air Force Reserves, said efforts to date to close Guantánamo had failed because there had been no agreement that detainees could be held indefinitely on American soil. “We could never cross that bridge,” he said.

There is also no evidence that the Guantánamo Bay center could be closed once the detainees can go through the Military Commission process.

Brig. General John Baker, chief defense attorney for military commissions at the Department of Defense since 2015, testified that the government must reach agreements with the defendants because the commissions are a “failed experiment” among four presidents who produced only one final conviction.

Government push for the death penalty, violations of legal secrecy and over-protection of information about the use of torture have resulted in none of the active cases setting a trial date, Baker said.

“We’re further from the process today than we were at the beginning,” said Baker. “This legal swamp, I see no way out. The status quo is not working. ”

Tennessee Republican Senator Marsha Blackburn asked what had changed since President Barack Obama went to the White House in 2009 to seek closure of the detention center and ultimately failed to do so.

“Nothing made them less dangerous,” said Blackburn. “I think that’s going to get lost. There is nothing to say that they have been rehabilitated, but there is evidence that many go back to create terror. ”

Texas Republican Senator John Cornyn said part of the problem is that some people argue that crimes should be governed by the normal rules of a criminal trial, and that is not possible for many of them.

“If it were easy, four presidents, 20 years, we would of course have found that out,” said Cornyn.

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