Nowhere in the Constitution is it written that maintaining a federal detention center is among the many powers delegated to Congress. Yet today it is abundantly clear that Congress is solely responsible for the continued existence of the wretched and dysfunctional prison that houses 116 prisoners at Guantánamo Bay, Cuba.
On Thursday, Secretary of Defense Ash Carter renewed the Obama administration’s effort to close the prison by pleading for congressional support to transfer prisoners to a facility on the mainland. This is the administration’s “Plan B,” because the first plan — to try the 9/11 plotters, and perhaps others, in federal court — failed because of congressional obstruction. Mr. Carter’s plan is commendable, but, in truth, it, too, likely will run into the same obstinate refusal by the legislative branch to close Guantánamo.
That’s too bad because the prison long ago outlived its usefulness. Mr. Obama has been trying to close Guantánamo since he came into office because he realized, along with nearly everyone except members of Congress, that far from being an asset in the war against terrorism, the prison has become a liability to this country’s resources, security and its reputation around the world.
Cost: As Mr. Carter made clear last week, U.S. taxpayers are “paying too high a price” to keep the detention center open. Numbers bear him out: Reliable estimates say the United States has spent more than $5 billion at Gitmo and currently spends more than $3 million a year per prisoner, compared to about $75,000 at a stateside “supermax” prison. At a time when the Pentagon is shutting down valuable assets and programs to meet spending restrictions, does it make sense to maintain the most expensive and controversial prison in the world?
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Dysfunction: The strange and unique proceedings at Guantánamo have failed to deliver anything resembling justice. Just six detainees have been both convicted and sentenced for war crimes in military commissions. Charges against three other detainees were later dismissed, and five who were convicted were eventually transferred out. In other words, it is more advantageous to be found guilty of a war crime than to remain without charges and imprisoned indefinitely. Meanwhile, the 9/11 masterminds have yet to be tried, whereas they would almost certainly be on death row if they had been tried in a federal court.
Stain: Guantánamo has become a valuable recruiting tool for terrorists worldwide because it is seen as a zone of lawlessness. The proceedings do not resemble credible legal hearings and trials in which people are imprisoned on the basis of compelling evidence. Rather, they represent a Kafkaesque and ever-changing maze of rules that in no way meet the requirements of due process as we know it. That this system remains in effect in a place that flies the U.S. flag creates untold damage to the legitimacy of the American legal system.
Defense Secretary Carter is surveying military sites for a suitable place to move detainees that would require Congress to lift its ban on the transfer of Guantánamo detainees to anywhere in the United States for any reason.
If the substantive reasons for closing Gitmo are insufficient to convince Congress to work with him, members should ask themselves whether they want to hand this problem to the next president, who may well be a Republican. How does a new president credibly engage the world and lay claim to a new foreign policy while carrying the burden of Guantánamo?