How to Close Guantánamo

The president of the United States can, and should, close the Guantánamo detention facility. There are two main steps necessary to closure, both of which are within the president’s authority and control: Swiftly transferring the men who have not been or will not be charged with a crime, and ending the failed military commissions.

Laws imposed by Congress that place certain restrictions on transferring men out of Guantánamo do not prevent the President from taking either of these steps.

Transferring the uncharged men

Transferring men at Guantánamo requires negotiating an agreement with another country to repatriate or resettle them. To facilitate those agreements, the United States should not demand draconian security measures that some countries cannot, or will not, agree to impose. Rather the U.S. government should agree to:

• Provide sufficient funding for effective rehabilitation and reintegration, which in any individual case may include, but not be limited to, medical and psychological care (in particular torture rehabilitation), housing, education, job training, a living stipend for some period and family reunification;
• Provide the men (through their lawyers for those represented) and foreign officials with the men’s complete medical records, declassified where necessary, subject to their consent;
• Permit foreign government medical personnel to examine the men, subject to their consent;
• Permit diplomatic officials from foreign governments to participate in visits or interviews—i.e., do not limit participation to security personnel;
• To the maximum extent possible, involve the men’s lawyers in the transfer negotiation process, in particular with respect to providing foreign governments with holistic and accurate information (whether proactively or in response to questions);
• Continue to allow the International Committee of the Red Cross to conduct “exit interviews” with men who are designated for transfer, and ensure such interviews are conducted with sufficient lead time to adequately address any concerns;
• Work with resettling governments to ensure that resettled men are provided with a secure, recognized legal status, with a clear track to permanent residency for men who wish to reside permanently in transfer countries.

Transferred men must not be sent to a country where there are substantial grounds for believing they would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment, including continued indefinite detention without charge or trial, or otherwise be forcibly transferred. Nor should men be subject to transfer conditions that violate their human rights.

Ending the military commissions

After nearly 20 years of operation, the commissions have produced injustice after injustice. The case against the men alleged to be most responsible for the September 11, 2001 attacks has not even gone to trial. In fact, according to the military commissions chief defense counsel, the case is further from trial today than it was when he assumed his post in 2015.

At this point, the only way to salvage a modicum of justice is to pursue plea agreements with the defendants. Fair trials in the military commissions are not possible, and trials in U.S. federal court are prohibited by laws banning transferring the men to the United States. Moreover, the plea negotiation process offers the best chance at both serving victim family members’ needs, and imposing a degree of accountability for the defendants’ torture.

Plea negotiations should be governed by the following principles:

• There is no historical analogue to this context, which provides an opportunity for creative solutions.
• Federal judges can hold arraignments, take pleas, enter judgements and impose sentences via videoconference from Guantánamo – with consent of all parties – without running afoul of relevant law and rules.
• There are significant rights and accountability concerns on all sides of these cases that must be accounted for.
• Victims and their family members deserve to know, and should be provided, as much detail as possible about the planning and execution of the September 11, 2001 attacks, or other attacks in which the defendants were involved.
• For plea deals that recommend incarceration beyond time already served at Guantánamo, the administration should prioritize negotiating agreements with foreign governments that allow sentences to be served outside the U.S., subject to any terms of the plea deal regarding conditions of confinement.

For any detainee for whom there is not sufficient evidence, untainted by torture, to continue to prosecute, the administration should withdraw any charges and apply the steps outlined above for detainees who have not been charged with a crime.