WASHINGTON — A Senate Judiciary Committee hearing Tuesday made clear the withdrawal of troops from Afghanistan this year has further complicated the political, legal and legislative quandary that faces a renewed effort to close the Guantánamo Bay detention center in Cuba after nearly two decades.
The dilemma remains about what the United States should do with detainees who aren’t getting trials but are considered enemy combatants in a war on terrorism that isn’t over — a balance between getting justice for the Sept. 11 terrorist attacks and preventing terrorist groups from killing more Americans.
That has helped create an endless loop of congressional and presidential inaction, with few changes, and the facility keeps holding detainees amid a legal gray area caused by its location outside of the United States and its creation as part of a war.
That policy fight now typically plays out in annual spending bills, including early draft language in fiscal 2022 measures to close the Cuba detention center that Democrats pushed for and Republicans criticized.
Chairman Richard J. Durbin of Illinois opened the hearing Tuesday with criticism of the Biden administration for not responding to his requests for a new approach to Guantánamo Bay, and declining to send a witness for senators to question Tuesday.
And Durbin set out the current situation: There are 39 detainees remaining at the center, more than two-thirds of them have never been charged with a crime, it costs $540 million a year to keep it open, and there is “no end in sight” for military commissions that have stalled in part because of the government’s use of torture of enemy combatants.
“It saddens me that this hearing today is even necessary,” Durbin said, recalling one on the topic in 2013. “The story of Guantánamo is a story of a nation that lost its way.”
But closing Guantánamo means moving those detainees somewhere. Bringing them to the United States could mean numerous legal challenges related to potential rights with uncertain outcomes, the panel’s witnesses said, while releasing the detainees to another country means some could return to launching attacks against the United States.
Jamil Jaffer, the founder and executive director of the National Security Institute, testified that the Taliban, which hosted Osama bin Laden on the day of the Sept. 11 attacks, have now returned to power in Afghanistan and have not rejected the al-Qaida terrorist group responsible for the 2001 attack.
Another terrorist group known as ISIS-K was responsible for the deaths of 13 U.S. servicemembers at the Kabul airport during the withdrawal of U.S. personnel this past summer, Jaffer said.
“Other terrorist groups, too, are returning to Afghanistan as they see this ungoverned space as an opportunity to once again consolidate their efforts and fight the West,” Jaffer said. “The terrorist threat today is worse specifically because we withdrew from Afghanistan in the way and manner that we did.”
South Carolina Republican Sen. Lindsey Graham pointed out that five people in the Taliban government are former Guantánamo Bay detainees, including the acting ministers of intelligence and culture.
“And we’re talking about releasing people. This is nuts,” Graham said. “One thing I can say about the 39 people that are at GITMO, not one of them has attacked the United States. And if I have my way, none of them ever will.”
Yet moving detainees to the United States would bring in the usual federal court system and raise questions about what legal rights they would get, Charles Stimson, the deputy assistant secretary of Defense for Detainee Affairs during the Bush administration, testified.
Unless Congress passed a law to limit the rights of detainees, Stimson said, “there’s no doubt that once they’re here in terra firma, that anyone will challenge all sorts of other aspects to their law of war detention, including probably bringing tort suits against people in their personal capacity.”
Jaffer said it’s highly likely the detainees would get a certain number of rights that they wouldn’t have otherwise had at Guantánamo Bay, and the question is then which ones and how broad.
“Does the Fourth Amendment attach? Does the Fifth Amendment attach? How much of it, in what context? What about the right to confront witnesses, what about the evidence brought to trial?” Jaffer said. “A lot of this evidence was gathered on the battlefield, there’s no chain of custody, there’s not the usual things you would need in a federal trial” or other alternate procedure with constitutional protections.
Graham, a former military prosecutor in the Air Force reserves, said past efforts to close Guantánamo fell short because there was no agreement the detainees could be held indefinitely on American soil. “We could never cross that bridge,” he said.
There’s also no sign the Guantánamo Bay center could close once detainees can move through the military commission process.
Brig. Gen. John Baker, the chief defense counsel for military commissions at the Department of Defense since 2015, testified the government would need to start making agreements with the defendants, because the commissions are a “failed experiment” under four presidents that have only produced one final conviction.
The government’s push for the death penalty, violations of attorney-client privilege, and overprotection of information about the use of torture has added up to none of the active cases having a trial date set, Baker said.
“We’re further from trial today than we were when I started,” Baker said. “This legal quagmire, I don’t see a way out. The status quo is not working.”
Tennessee Republican Sen. Marsha Blackburn asked what has changed since President Barack Obama went to the White House in 2009 with a goal of closing the detention center, and ultimately failed to do so.
“Nothing has made them less dangerous,” Blackburn said. “I think that is lost in this. There is nothing to say they have been rehabilitated, but there is evidence that shows many go back to creating terror.”
Texas Republican Sen. John Cornyn said part of the problem is some people argue the crimes should be subject to the usual rules in a criminal trial, and that’s not possible for many of them.
“Obviously, if this were easy, four presidents, 20 years, we would have figured this out,” Cornyn said.