Editor’s Note: Stephen I. Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law, a CNN contributor and an expert on the role of the federal courts in the war on terrorism. The views expressed here are solely his.
Few things could more appropriately commemorate Thursday’s 16th anniversary of the opening of the Guantanamo Bay detention facility than a new lawsuit filed by 11 of the 41 detainees still in US custody there.
Thursday’s filing argues that, even if these men were once properly subject to military detention as part of the armed conflict between the United States and al Qaeda, neither US nor international law permits perpetual detention – the fate to which it now appears these men are inexorably (and unlawfully) headed.
As the attorneys responsible for this suit know all too well, these claims face an uphill battle in court. Although the Supreme Court ruled in 2008 that noncitizens held at Guantanamo have a constitutional right to challenge the legality of their detention in court, the lower federal courts over the ensuing decade have broadly sustained the government’s detention authority.
Just as importantly, lower courts have also endorsed the view that, because we are at war with al Qaeda, anyone who was ever even partially affiliated with that group (or any of its affiliates) is subject to military detention until the “end of hostilities,” whenever those may be.
In 2004, the Supreme Court suggested that the end-of-hostilities model for detention “might unravel” in a war that truly went on forever. But the lower courts have repeatedly held in recent years that we aren’t there yet, even though, 16 years in, these hostilities may not end in our (or, more importantly, the detainees’) lifetimes.
There’s an important difference, though, between what the law allows and what makes good sense as a policy matter. The Bush and Obama administrations each understood this distinction, which is why more than 500 men were released or transferred from Guantanamo during President George W. Bush’s tenure (none pursuant to a court order), and another 200 during President Barack Obama’s (roughly 30 of whom were released after obtaining favorable judicial rulings).
Indeed, Obama may have failed in his campaign pledge to “close” Guantanamo, but one of his quiet successes was the institution of a sophisticated periodic review system, which did not just ask whether detainees were legally subject to continuing military detention, but whether there was sufficient evidence that each detainee would pose a continuing threat to the United States if released.
If the government’s own review board concluded the answer was no, that detainee would then be released either to his home country or a third-party country willing to take him. And even among the detainees still at Guantanamo more than a decade after their capture – the worst of the worst, as they were often caricatured – the review boards have ruled for more detainees than they have ruled against. By the end of the Obama administration, the government had succeeded in transferring all but five of the detainees cleared by these periodic review boards.
In contrast to the nuanced approach of the last two administrations, President Donald Trump’s apparent plan to date has been to do … nothing. No new detainees have been sent to Guantanamo (despite repeated pledges by Trump on the campaign trail that he would reinvigorate the detention program), and no detainees have been released, either. By all accounts, Guantanamo has become, to the Trump administration, a virtual irrelevancy – useful for rhetorical flourishes whenever new terrorism suspects are arrested, but not worth any actual policy attention. Meanwhile, according to the Center for Constitutional Rights, citing Defense Department sources, it costs about $445 million a year to keep the facility open, which works out to around $11 million per detainee.
With its irrelevancy to the government, Guantanamo has also largely disappeared from the attention of the public and press. There’s only one major media outlet – The Miami Herald – that still regularly sends a reporter to the military base. There’s little discussion in the media of some of the recent controversies there, including the government’s plan to destroy art created by the detainees; the concerns over government spying on conversations between some of the detainees and their attorneys; and, most recently, an apparent renewal of controversial genital searches of the detainees that provoked controversy (and major litigation) five years ago – when the detention facility was under the command of then-Gen. John Kelly (the current White House chief of staff).
Get our free weekly newsletter
Reasonable minds will continue to disagree about the virtues and vices of long-term military detention as a staple of contemporary US military policy. Reasonable minds will also surely disagree about what the government should do with the remaining detainees – including whether the periodic review process should be reinvigorated, whether they should be moved into the United States and so on. But the critical point is that these are debates we ought to be having – and policy solutions we ought to be discussing. As we enter the 17th year of military detention at Guantanamo, we can’t just close our eyes and hope it – and the 41 men still held there – simply go away.