How to Close Guantanamo

Why Obama doesn’t need Congress to start to make good on his promise.

President Barack Obama finally broke his long silence on Tuesday on the need to close Guantanamo. Echoing comments he made four years ago -- when, on his second day in office he promised to close the facility within a year -- he said "Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient.... It needs to be closed."

Welcome words, but it's unlikely they will brighten the day of the 100 men currently on hunger strike at the facility. Twenty-one are currently being tube-fed, a procedure that entails being put in a restraint chair while a lubricated plastic tube is inserted down a detainee's nose and into his stomach. (Detainees are then held in the chair for approximately two hours to make sure the liquid supplement fed into the tube is digested.) Obama's words might carry more resonance with those who have been lobbying for closure of the facility for the better part of a decade, though perhaps more so if he didn't seem so keen to apportion blame elsewhere.

In his remarks, made in response to questions at the White House press briefing, Obama pointed the finger at Congress saying it had been "determined" not to let him close the facility, and that he promised to "re-engage with Congress" on the issue. While it's true that Congress has certainly placed obstacles in the way of closing the facility, such as restricting the use of funds to transfer detainees to the United States for trial, there are still a number of steps the Obama administration could have taken -- and can still take now -- to begin closing the facility and ending indefinite detention without trial.  

For one, it can begin to transfer the 86 of the 166 detainees at Guantanamo already slated for release to their home or third countries. In 2011 and again in 2012, Congress enacted some restrictions on the transfer of detainees from the facility, but those restrictions are not insurmountable. They require receiving countries to take certain steps to ensure that those being transferred do not engage in terrorist activity and that the secretary of defense certify such steps have taken place. If, however, the secretary of defense cannot, for one reason or another, certify those steps have been taken, he can waive the certification requirement in lieu of "alternative actions" -- a term which has no clear legal or procedural definition. The only guidelines are that they "substantially mitigate" the risk that the detainee being transferred may engage in terrorism. Clearly then, the administration's ability to transfer detainees out of Guantanamo exists now, even with congressional restrictions. And with Obama again reiterating that keeping Guantanamo open harms U.S. security, the certification -- and even more so the waiver -- process seems to offer a clear path forward to emptying the facility of more than half its prisoners, if not closing it down.

Yes, there is some risk that detainees released from Guantanamo may engage in terrorism. The government has stated that some of the detainees released from Guantanamo have already been involved in terrorism, though the number is disputed and the government refuses to publicly release the information on which it is basing those claims. The director of national intelligence claims (though these claims have been discredited) that about 16 percent of the approximately 600 people released from the facility over the past 12 years are confirmed, and 11 percent are suspected, of having engaged in terrorism after their release. Independent, credible analyses of those figures by researchers at the New America Foundation indicate the number is more like 6 percent, or 1 in 17. Even if the Pentagon figures were true, clearly the vast majority of people released from Guantanamo have not engaged in terrorism; in fact, it's well below the estimated 60 percent U.S. recidivism rate for criminal convictions overall. There are many people in the world who may commit crimes in the future, but the United States has not locked them up indefinitely. The bottom line is that the administration needs to assume some risk that those released may become involved in terrorism -- even though that risk is objectively low. But even on a purely moral level, the fear that someone may engage in terrorist or criminal behavior in the future is not a legitimate basis for prolonged indefinite detention. Furthermore, the decision about whether to release a detainee should be made on an individual basis, not based on the behavior of other detainees.

The administration could also lift its self-imposed moratorium on returning Guantanamo detainees to Yemen; some 56 of the 86 detainees slated for release are from that country. The president imposed a moratorium on returns to Yemen after Umar Farouk Abdulmutallab, a Nigerian trained in Yemen, tried to blow up a Detroit-bound plane with explosives hidden in his underwear on Christmas Day 2009. Abdulmutallab was convicted in federal court and is now serving a life sentence. But the Yemeni government has requested the return of their citizens from Guantanamo and promised to build a rehabilitation center there to facilitate the process. Senator Dianne Feinstein (D-CA), an initial supporter of the moratorium, recently asked Obama's national security director to reevaluate the hold and consider whether, with appropriate assistance, Yemeni detainees can begin being transferred home.

Of the other 80 detainees at Guantanamo, the administration has designated 46 for indefinite detention. They were put in this category because an interagency task force deemed them too dangerous to release and yet the administration either did not have sufficient admissible evidence against them to prosecute or concluded that their acts did not amount to a chargeable crime.

Obama signed an executive order on March 7, 2011, providing these detainees the ability to challenge this designation. But the panel before which they would appear, called a Periodic Review Board (PRB), has yet to even be formed -- even though an executive order mandated that it begin reviews within the year. And while 31 prisoners have been slated for prosecution, only six of those -- including the five defendants accused in the attacks of September 11, 2001, face any formal charges. The remaining three men at Guantanamo are serving sentences following convictions in military commission proceedings.

The administration should either prosecute these 80 detainees against whom they have any credible evidence -- and in courts that comport with fair trial standards -- or release them. Though starting the PRB process would provide detainees in the indefinite detention category with at least some ability to challenge their designation, if these individuals cannot be prosecuted, they should be released.

Even though they have been revised three times since first formed in 2005, and improved under Obama's presidency, it's clear that military commissions at Guantanamo do not comport with fair trial standards. Among other things, they lack judicial independence, allow the admission of certain coerced testimony, and fail to protect privileged attorney-client communications. In February, defense attorneys in one of the only two cases currently being prosecuted at Guantanamo discovered listening devices disguised as smoke detectors in attorney-client meeting rooms. Additionally, proceedings were halted because a courtroom feed to the media and observers that supposedly only the judge was able to control was cut off by an unnamed U.S. agency. Then in mid-April, hearings were further delayed by two months because an enormous number of prosecution and defense files disappeared from the server that both legal teams are required to use to process the highly classified documents in the case. Furthermore, it's not entirely clear why even the court's supporters would be so in favor of continuing the status quo -- the only two military commission verdicts obtained by full trials were recently overturned on appeal. In those cases, the appellate court found that the charges of conspiracy and material support for terrorism, for which the defendants were accused, were not war crimes and hence not within the jurisdiction of the commissions.

Current congressional restrictions prohibit the use of funds to transfer detainees to the United States, so Obama is correct when he said that he'll need to re-engage with Congress to lift these unreasonable restrictions. While federal courts are not perfect, they provide much greater procedural protections than the military commissions; and, with 200 years of jurisprudence behind them, their verdicts are far more certain to withstand appeal.

Obama's pledge to "get back at it" on closing Guantanamo is welcome, but he can't get away with words alone, or with shifting the blame to Congress. There are steps he can take now to begin ending the unlawful practice of indefinite detention without trial and to transfer those prisoners who are already slated to be sent home. As the president himself said, Guantanamo "hurts us in terms of our international standing" and "lessens cooperation with our allies on counterterrorism efforts." If these are words he truly believes, then he should exercise the authority he has to transfer some detainees now, and begin working with Congress to address the rest.


National Security

Kabul's Unlikely New Ally

Has Pakistan decided it's finally time to embrace Afghanistan?

The recent meeting of Afghan and Pakistani leaders with Secretary of State John Kerry in Brussels marked a renewed effort by the Obama administration to get these two South Asian nations to resolve hostilities that have fueled the war in Afghanistan. 

"It's fair to say that there's good feeling among all of us that we made progress," Kerry said after meeting with Afghan President Hamid Karzai and Gen. Ashfaq Kayani, Pakistan's top military officer. "We will continue a very specific dialogue on both the political track as well as the security track.... [A]ll of us agreed we are committed to try to find stability and peace within both countries and the region itself."

The meeting came at a time when American officials believe that after years of supporting militants who were trying to undermine the Afghan government -- and as U.S. forces prepare to leave the region -- Pakistan has changed its approach to Kabul and has become more cooperative in seeking a political solution to the conflict raging next door, American officials say. However, even as they insist there is a new approach, those same officials  acknowledge there has been no "measurable change" in support for the combatant groups U.S. and allied troops confront in Afghanistan.

Such a shift, if actually executed, would be significant. Pakistan's support for the Haqqani network, the Quetta Shura, and other Afghan Taliban militants -- whom it has sheltered, trained, and armed -- has perpetuated the insurgency in Afghanistan and angered the United States, which has spent billions of dollars and lost thousands of troops trying to stabilize the country since ousting the Taliban from power in 2001. Pakistan's support for these groups has been motivated by its fear that Afghanistan could become an ally of longtime enemy India and nurture separatist movements in the western part of its territory. Supporting the Taliban was seen as a means of keeping Indian influence in Afghanistan to a minimum.

"The growing regional pivot in Pakistan's foreign policy is a reflection of our democratic policymaking," Pakistani President Asif Ali Zardari said last September at the United Nations General Assembly. "A brighter Afghan future will only be possible when the search for peace is Afghan-owned, Afghan-driven, and Afghan-led." Zardari -- who has led the Pakistan People's Party since his wife, Benazir Bhutto, was assassinated in 2007 -- said his nation would support Afghan efforts toward "reconciliation and peace."

Pakistan's government was dissolved in March ahead of national elections this month, but support for the regional shift is shared across the nation's major political parties. Among those embracing this view is the odds-on favorite to become the nation's next leader, former Prime Minister Nawaz Sharif, and his wing of the Pakistan Muslim League.

One U.S. official who deals with Pakistan notes that Hina Rabbani Khar -- until recently, the country's foreign minister -- has been saying, "This is for real, we really are turning a corner in the way we approach Afghanistan. It's a state in its own right, it's not just rubbish in our backyard."

American officials believe this rhetoric is sincere, signifying a genuine change in strategy. The Pakistanis "are going out on a limb publicly, they are really pumping this thing," the official said. "Fundamentally, the message is quite consistent and well coordinated between... the five or 10 senior most people in their hierarchy," including Kayani, who serves as the chief of army staff.

American officials say one concrete sign of Pakistan's new policy is its move late last year to free Afghan Taliban prisoners that Kabul's High Peace Council had asked to be released. U.S. representatives also stress that the Pakistani foreign minister has visited Kabul often and met with Afghanistan's Northern Alliance, which is composed mostly of Tajik, Uzbek, and Hazara political leaders who are close to India and fought the Pakistan-supported Taliban during the 1990s.

Pakistanis are also now cooperating more with Afghan and U.S. military officials on border security, one senior Defense Department official said in an interview. Pakistani leaders have "publicly and privately expressed support for the Doha political process," in which the Afghan Taliban would be allowed to open an office in Qatar in order to meet with Afghan and foreign officials, with the aim of negotiating a conclusion to the war, the defense official said. The United States has been pushing for this development for a couple of years.

"The number one factor" driving Pakistan's shift in policy, according to the senior defense official, is the "growth of domestic radicalization, militancy, and terrorism" in Pakistan. According to the Pak Institute for Peace Studies, an independent think tank, nearly 40,000 civilians have been killed or injured since 2006 in violence stemming from terrorism, ethnic and sectarian strife, and the separatist insurgency in Baluchistan, as well as criminal activity.

"Pakistan's biggest fear is that if the [Afghan] Taliban come back into power through violence, through force, they will create trouble all around them, including in Pakistan," the official said. "They will not only provide safe haven to militants that are in Pakistan... but more ideological stimulus to these groups." This line of thinking had been simmering for a number of years but "has now crystallized in Pakistan across the civilian and military leadership, over the course of basically 2012."

Stephen Cohen, a South Asia expert at the Brookings Institution, says that although Pakistan has relied on the Afghan Taliban to advance its interests in Afghanistan for the past two decades, Pakistan's military leaders are now "uncertain about their [Afghan] proxies and whether they will turn against them, and whether the proxies have alliances with the people they are fighting in Pakistan, the Pakistan Taliban. Ideologically, there is no difference between them." Cohen says Pakistani officials "are nervous about their support for the [Afghan] Taliban bouncing back and hurting them in terms of their war against the Pakistani Taliban, which is now a full-scale war."

Pakistan's new army doctrine, which has not been publicly released, now recognizes that the military must also focus on the internal threat to the country's stability, according to Shuja Nawaz, who directs the South Asia Center at the Atlantic Council. For the first time, the doctrine tries to introduce to the senior ranks the notion that Pakistan is facing "multifaceted" threats and should be "no longer simply India-centric," he said.

"Our efforts must be directed towards stabilizing the internal front," said Kayani last August in a speech on the nation's independence day. "Today, extremism and terrorism present a grave challenge."

The U.S. military drawdown in Afghanistan is another factor propelling Islamabad's new approach, according to the first U.S. official, who deals with Pakistan. The Pakistanis are concerned that the Afghan National Security Forces will not be able to provide stability "at least in some provinces," this official said. "And I believe the Pakistani leadership, when they say that they don't, they categorically do not want the Taliban to come back to power." 

Some former U.S. officials are skeptical, though.  

"What they are doing is marginal," said one former senior defense official, who noted that while there may be some improvement in the Afghan-Pakistan relationship, "There are way too many things in play before you can say this is a concerted shift."

"There is no historical precedent" for Pakistan to change its entire approach toward Afghanistan, says Seth Jones, who advised U.S. special forces in Afghanistan in 2010 and 2011. Now a political scientist at RAND, Jones notes that Pakistan has backed militant organizations in Afghanistan since at least the 1980s, aiming to ensure a friendly country on its western flank.

Pakistan also appears to have continued to support violent extremists even after it launched the purported shift in approach. According to Bruce Riedel, a former CIA official now with Brookings, when the Haqqani network attacked Camp Bastion in Afghanistan last September, "one of the Afghan Taliban attackers was captured alive, and in his interrogation, he indicated the attack was planned in conjunction with the ISI [Pakistan's intelligence agency], and they facilitated their route to the target and helped them plan the attack on the facility."

Even U.S. officials who believe a significant shift is underway say it will be implemented only gradually.

The U.S. official who deals with Pakistan said that Washington has not "seen any measureable change" in Pakistani support for the Haqqani network. Nor did this official expect to see any decrease in support for the Haqqani network anytime soon. "I think that is part of Pakistan's hedging strategy," the official said. "They will want to see how things are playing out a little bit more across the border before they take action."

Another official said that the Pakistani government would not go after these militants because they do not threaten the Pakistani nation. But Pakistani officials realize that a lot of these groups can morph or are already playing multiple games, some of which are anti-state," according to this source.

Pakistani military officials deny they distinguish between Afghan Taliban and Pakistani Taliban.

"We do not discriminate, as a matter of state policy, between terrorist groups. So the concept of the good Taliban and the bad Taliban -- there is no such thing," one Pakistani defense official insisted in an interview. "How do you differentiate," the Pakistani official asked, between a Haqqani network fighter and somebody else who belongs to another Pakistani Taliban group?

The militants lack uniforms and "don't have distinctive patches where you could identify them," the official said. "And at 100 meters, 200 meters, a person who has an AK-47 and is shooting at you -- you don't really ask him to identify himself so that you may respond. You tend to shoot first and identify later."

The next test for the strategic pivot will be the May 11 parliamentary elections. The American official who handles Pakistan issues said, "I think the idea has been socialized enough and enjoys enough support across the spectrum that I don't think we'll see a big shift in that particular approach."

It appears that the party that is currently leading in the polls in Pakistan is likely to continue this "regional pivot."

"We want the peace process in Afghanistan to be Afghan-led, Afghan-owned," Tariq Fatemi, a foreign policy advisor to Nawaz Sharif, said in an interview. "We do not want to see any interference from any country in Afghan affairs. Afghanistan is a sovereign and independent country. We respect its sovereignty and we want Afghanistan to be treated as such by all the foreign powers." He added: "Mr. Nawaz Sharif knows very well what happened with the departure of the Soviet troops from Afghanistan, the civil war that ensued, the chaos that ensued. And we are frightened [by] that nightmarish situation." 

As for the peace talks that have been launched by the U.S. and Afghan governments with the help of the Pakistani government, Fatemi said, "We think it's a step in the right direction."  

Evan Vucci/AFP/Getty Images