On January 11, 2002, the first prisoners were slammed into hastily assembled cages at the Guantánamo Navy base, and men then streamed in from across the globe. Typically brought into custody without even the most basic due process review, the newly arrived detainees included large numbers who had no reason to be in any prison, much less Guantánamo. Yet they were all now caught in a prison that one Bush official called "the legal equivalent of outer space" – a place where no laws were intended to apply.
Fortunately, there is no U.S. prison beyond the reach of the law. The U.S. Supreme Court made it clear that basic due process protections apply at Guantánamo, and that the Geneva Conventions protect even those men whom former President Bush insisted were the worst of the worst. Torture and the most obvious abuses eventually stopped, but an insidious abuse is just as persistent 13 years later: indefinite detention without charge or trial. As of today, 117 of the 127 men left at Guantánamo have not been charged or tried for any crime.
Although Barack Obama ran for president based on a promise to close the Guantánamo detention facility, his administration's efforts to carry out that promise have come only in fits and starts. Recently, the pace has increased. With the transfer of more than three dozen men out of Guantánamo over the past 18 months, the population at Guantánamo is now down to a little more than half of what it was when President Obama first took office.
But how do we get to zero at Guantánamo? As the president and his team play this game of inches in bringing down the population on a case-by-case transfer basis, here's what's left to be done:
- Transfer the 59 Guantánamo detainees who have already been cleared for release by the military and national security agencies. These detainees were all cleared five years ago, and many of them were also cleared several years before that by the Bush administration. Top officials at the Departments of Defense and State have been working hard to find countries to take the detainees, and these transfers should be completed within months rather than years.
- Put the 58 detainees who have not been cleared but also have never been charged with a crime through the Periodic Review Boards, which have the power to clear detainees for transfer. These boards have been maddeningly slow (completing only nine individual reviews for a pool of 71 detainees), and they are by no means perfect because they lack basic due process safeguards. Still, the president set up the reviews as a way to help close Guantánamo, and the reviews can only work if actually held.
- Recognize that the Guantánamo military commissions are fundamentally broken because they violate fundamental fair trial requirements. Instead, transfer the 10 detainees who have been charged or tried before a military system into the regular federal criminal courts, along with any other detainee who the government believes can and should be criminally charged.
- That would leave only a small group of detainees that the government argues is too dangerous to release, but there is not enough admissible evidence to try. Why? Because so much of the government's apparent "evidence" was obtained through torture and abuse, and every court in every civilized country in the world recognizes that coerced evidence is inherently unreliable and not a basis for determining guilt. Some of these men left at Guantánamo are featured in the Senate torture report as victims of the horrific CIA torture program. Others in this group are not in the Senate report, but only because the torture orders against them came from Donald Rumsfeld's Pentagon instead of from the CIA. But regardless of which federal agency tortured them, none of these detainees should continue in indefinite detention. Instead, if there's non-coerced evidence to support prosecution, they should be tried. Otherwise, they should be released. That is the American way.
Those steps would get us to zero. Of course, Guantánamo should have closed and indefinite detention should have ended long ago. But with two years and nine days left under President Obama, there is still time to build off the good work of the past several months and finish the job.