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Congress Has a Chance to Reengage on Guantanamo Bay and Make Real Progress

In his second full day in office, President Obama declared his intent to close the U.S. detention facility at Guantanamo Bay, Cuba. Yet that facility continues in operation and it stands as a symbol of the mistreatment of prisoners that was mirrored at the Abu Ghraib prison in Iraq, where vivid disclosures of the torture of detainees by American troops shocked the world.

This week, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights will convene the first congressional hearing on Guantanamo since 2009. As it does, members of the committee should examine all that Guantanamo and indefinite detention have cost, and are costing, the United States. It should also use its findings to shape the Senate’s upcoming consideration of the annual defense bill that includes key provisions to expedite the facility’s closure.

Gitmo serves continuously as a recruiting poster for terrorists who target the U.S. and our interests. It dissuades our allies and other nations from transferring terror suspects to us and from cooperating fully in our campaign against terrorists. Our Department of Defense has correctly stated that closing Gitmo is a “national security imperative.” There are some steps that the administration should and could take now without further action from Congress, which seems intent on blocking the closure of Gitmo.

Congress has precluded the administration from transferring any of the 166 detainees from Gitmo to the United States for prosecution or incarceration. The rationale plays on the fears of our population that locating prisoners in the U.S. would endanger public safety, despite the fact that between the 2001 9/11 attack and the end of 2011, there were 494 convictions in federal courts of individuals charged with terrorism offenses in 36 states and the District of Columbia. There are 355 terrorist suspects currently incarcerated in the United States without incident. None has escaped and there have been no targeted revenge attacks on any location or individual. 

Moreover, according to the Department of Defense, the price tag to operate the Gitmo prison in 2013 was $246,187,974, or just under $1.6 million per detainee compared to an average of $34,000 per inmate in high security federal prisons in the U.S. And these outrageous costs are going up at a time of austerity in the defense budget. With dozens of the 166 prisoners on a prolonged and well-publicized hunger strike that has required nighttime forced feedings, the prison staff is being increased, and facilities are scheduled for upgrades and even additional construction.

Some argue that military commissions are more effective than our civilian courts in trying and convicting detainees. In fact, the reverse is true. There have been only seven convictions by military commissions and 494 by federal courts. Since military commissions are limited to prosecuting defendants for war crimes, civilian courts have more than four times the number of potential charges that can be employed to convict detainees. In addition, military commissions have experienced significant problems with the conduct of their proceedings.S ecret listening devices have been found in defense attorney-client conference rooms, and some 540,000 defense e-mails have been mistakenly sent to prosecutors. 

Congress also has restricted the transfer of prisoners in Gitmo to other countries. During the previous administration, the number of inmates at Gitmo peaked at 779, and more than 500 were released to some 52 countries without significant congressional objection. Of the 166 detainees currently remaining in Gitmo, 86 have already been approved for release. It would not be difficult for the extensive complex of prisons in the U.S. to absorb the remaining 80.

As recently as last month, Senators John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.) visited Gitmo with White House Chief of Staff Denis McDonough and the Department of Defense, and promptly issued a statement strongly recommending closure of the prison. As General Colin Powell has said, “I would close Guantanamo. Not tomorrow, but this afternoon.” 

The Senate has the opportunity to reverse course when it votes on the annual defense bill. It will then have to prevail in negotiations with the House, and it must. As we end the war in Afghanistan, we must finally solve what to do with the law of war detainees at Guantanamo.  Closing Gitmo is not only a “national security imperative” but also just plain common sense.

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