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 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:
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.
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:
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.