In 2010, I was branded a member of the “Al Qaeda 7” — a notorious label attached to Department of Justice lawyers who were mocked by critics claiming they had “flocked to Guantánamo to take up the cause of the terrorists.” My crime: I advocated for the closure of the detention facility — a position that has also been taken up by the likes of former President George W. Bush, former Secretary of Defense Robert M. Gates and former Secretary of State Colin L. Powell — and for more humane living conditions for those imprisoned there.
At the time, I reacted defensively. I was indignant. I insisted on the legitimacy of my convictions. But even then the writing was on the wall. For a core group of detainees, closing Guantánamo would not mean release or prosecution, as most human rights and civil liberties groups have long advocated. Rather, it would mean relocation to the United States, or elsewhere, for continued detention.
Now, almost four years later, I have changed my mind. Despite recognizing the many policy imperatives in favor of closure, despite the bipartisan support for this position, and despite the fact that 166 men still languish there, I now believe that Guantánamo should stay open — at least for the short term.
While I have been slow to come to this realization, the signs have been evident for some time. Three years ago, Barack Obama’s administration conducted a comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners couldn’t be prosecuted, but were too dangerous to be transferred or released. They are still being held under rules of war that allow detention without charge for the duration of hostilities.
Others happened to hail from Yemen. Although many of them were cleared for transfer, the transfers were put on indefinite hold because of instability in Yemen, the fear that some might join Al Qaeda forces, and Yemen’s inability to put adequate security measures in place.
While the specific numbers have most likely shifted over time, the basic categories persist. These are men whom the current administration will not transfer, release or prosecute, so long as the legal authority to detain, pursuant to the law of war, endures.
President Obama raised the hopes of the human rights community when during his re-election campaign he once again said the detention center should be closed. But it was not clear whether he had a viable plan, and any such plan would almost certainly involve moving many of the detainees into continued detention in the United States, where their living conditions would almost certainly deteriorate.
Guantánamo in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees’ lawyers, there has been a significant, if not uniform, improvement in conditions.
The majority of Guantánamo detainees now live in communal facilities where they can eat, pray and exercise together. If moved to the United States, these same men would most likely be held in military detention in conditions akin to supermax prisons — confined to their cells 22 hours a day and prohibited from engaging in group activities, including communal prayer. The hard-won improvements in conditions would be ratcheted back half a decade to their previous level of harshness.
And Guantánamo would no longer be that failed experiment on an island many miles away. The Obama administration would be affirmatively creating a new system of detention without charge for terrorism suspects on American soil, setting a precedent and creating a facility readily available to future presidents wanting to rid themselves of a range of potentially dangerous actors.
The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.
In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.
At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.
In the meantime, we should keep Guantánamo open.
Jennifer Daskal is a fellow and adjunct professor at Georgetown Law Center. She has served as counsel to the assistant attorney general for national security at the Department of Justice and as senior counterterrorism counsel at Human Rights Watch.