The Catch-22 of Closing Gitmo

President Obama’s plan to close Guantanamo – even if it could be implemented – would still leave several dozen detainees in the legal limbo as “non-releasable,” albeit inside U.S. prisons, as Helen Schietinger explains.

By Helen Schietinger

The lineup of presenters at Human Rights First’s Closing Guantanamo event earlier this month promised to provide the inside scoop on how Obama is going to close the Guantanamo Bay prison and what the key roadblocks might be. But what I heard did nothing to allay my alarm that the Obama administration will continue the policy of indefinite detention of many “war on terror” detainees and will do nothing to hold accountable those who orchestrated and oversaw the torture of Muslim men in U.S. custody.

The two administration special envoys to close Guantanamo (the Pentagon’s Paul Lewis and Lee Wolosky of the State Department) and their predecessor, State’s Clifford Sloan, laid out the President’s plan for dealing with the remaining 91 detainees. Wolosky explained that the plan’s key objective is to complete the Periodic Review Board reviews and whittle down the number of “non-releasable” prisoners to a “mere” 30 or 40, thus making the job of dealing with a smaller group much easier.

Some of the original detainees jailed at the Guantanamo Bay prison, as put on display by the U.S. military.

Some of the original detainees jailed at the Guantanamo Bay prison, as put on display by the U.S. military.


Sloan added that sending those 30 prisoners elsewhere won’t be a problem after all those cleared for release are expeditiously transferred to other countries. The options for the ones to be prosecuted (perhaps 14 of the 30 or 40) include transfer for prosecution in a third country, trial by Military Commissions or trial in federal courts in the U.S.

The plan for prisoners who are not released or charged is to hold them in indefinite detention inside the U.S. Wolosky asserted that under no circumstances will the detainees being held under law of war authorities be released. He insisted that they are not entitled to more or fewer legal rights than other law of war detainees and would not have more rights if transferred to the U.S. than they now enjoy in Guantanamo, including habeas corpus rights.

Never mind that this seems to be in conflict with the concerns of Gregory G Garre, U.S. Solicitor General when he argued in 2008 that the Uighur detainees should not be brought into the United States to allow their habeas petitions to be heard in U.S. court.

The other two speakers, U.S. Marine Major General Michael Lehnert — who initially set up the prison — and Alberto J Mora — who as General Counsel for the Navy early on opposed the use of torture at Guantanamo prisoners — both challenged the legality of indefinite detention.

Lehnert said it was a grave mistake not to have applied an appropriate judicial process as soon as the prison was opened as demanded by the Geneva Convention and that this has fed into the narrative that we’re not a nation of the rule of law. He asserted that the prisoners’ extralegal status is inconsistent with U.S. law.

Lehnert also told us that the military at Guantanamo swore an oath to uphold the Constitution, not the bidding of the president. Allowing enhanced interrogation, which he called a euphemism for torture, was beneath us and is a blight on the United States.

Mora listed mistakes committed by the George W. Bush administration, including establishing indefinite detention, using torture as a weapon of war, opening Guantanamo to detain prisoners beyond the protection of U.S. law, treating officials as though they are above the law, and using a judicial process lacking in independence and due process. He added that Obama’s decision to hold no one accountable for torture is largely responsible for the sad fact that 58 percent of Americans believe that torture is acceptable.

Mora’s and Lehnert’s counterpoints to administration policies were reinforced by the retired generals who attended the forum. There was a complex discussion about the number and fate of prisoners who were deemed too dangerous to release but for whom there is no good evidence with which to prosecute, either because the men were tortured or there is no evidence of wrongdoing.

U.S. Army Brigadier General Stephen N Xenakis, a psychiatrist, challenged the validity of attempts to predict detainees’ “dangerousness” and said that predicting such future behavior is no better than the flip of a coin. In response, Lewis defended the criteria the government uses to determine how much of a threat a given detainee poses and claimed the U.S. has a right to keep enemies off the battlefield.

U.S. Army Lt. General Robert G Gard strongly challenged the use of Guantanamo to lock up a handful of prisoners indefinitely because they might be dangerous: “Looking at the broad security challenge of there being 25,000 to 30,000 radicals in ISIL, what possible marginal impact would there be to releasing these men, whom the U.S. cannot try because of its own misbehavior?”

Gard added that he deeply resents the holding of prisoners deemed too dangerous to release but who cannot be prosecuted because of tainted evidence, pointing out that every day prisoners in the U.S. are released for precisely that reason.

Moderator Elisa Massimino, president of Human Rights First, noted that some criticize the closing of Guantanamo because “high value” terrorist suspects who might have valuable information are being killed by drone strikes rather than being captured and interrogated. She added that a suspected senior-level terrorist was recently captured in Iraq and is now being interrogated; so, what is the policy?

Lewis asserted that we need a detention policy going forward and that using Article III interrogations on a case-by-case basis without torture can be very effective, there being lots of incentives that can be used to extract intelligence.

Moderator Carol Rosenberg, Military Affairs Correspondent of The Miami Herald, pushed the question of why accountability was not being pursued. Journalist Charles Savage of The New York Times pointed out that we came close to establishing a means of accountability after the Senate Torture Report was published, when a truth and reconciliation process was explored, but that the idea never made it beyond the Justice Department.

Mora maintained that even if individuals are not prosecuted some form of accountability is needed, such as a U.S. admission of wrongdoing and compensation of victims, as with the Japanese-Americans sent to internment camps during World War II. However, he also said, “It is legally unthinkable that there won’t be accountability, but it’s politically unthinkable that there will be [accountability].” This speaks volumes coming from Mora, who was in the forefront of those few lawyers resisting the use of torture.

My interpretation of the President’s plan is that in essence the U.S. will continue to indefinitely detain suspected terrorists (mostly Muslim men) based on an assessment of their future dangerousness and that this is considered justified under the law of war.

Somehow this has been expanded to cover persons who 1) have been captured under circumstances not defined by the agreed-upon laws of war (including that soldiers wear uniforms, represent and claim allegiance to a nation-state, fight on a battlefield or at least in a war zone); and 2) have been held at great distance from the conflict where they happened to be captured (Guantanamo for prisoners from Afghanistan, for example). The law of war is meaningless if it is arbitrarily amended to suit the State’s purposes.

But now, in this presidential election year, when bigots are whipping up racist hatred and fear with the help of mainstream media, I can fast-forward in my mind to a time when those same unconstitutional precedents are the basis for concentration camps for much larger groups of people than are presently locked up in Guantanamo.

Remember:  the German people elected Hitler. Laws were passed to protect the German way of life from the likes of Jews, homosexuals and gypsies and those laws incrementally reinforced the xenophobic mentality instilled in the general population. In a remarkably short period of time, Germany went from being an open democratic society to one in which people who did speak out against the state lost their jobs, were rounded up, and some of them ultimately executed. And the lawyers, and the generals, and even the churches acquiesced.

I am more afraid of those in power who erode the rule of law in the name of state security than I am of “suspected terrorists.” I am watching the U.S. become a state in which police who gun down unarmed black people continue to go free, Muslim communities are surveilled, individuals are recruited to spy on one another, and innocent young Muslims who are entrapped by the FBI accept guilty convictions rather than risk serving life sentences for crimes they did not commit.

To those colleagues who say I’m being alarmist, I suggest that you start reading what Muslim communities and communities of color reveal is happening to them. Start listening to people who have resigned from military and government posts so that they can speak out about what they have witnessed. Question the truth of the state’s slander of whistleblowers, as well as how it is played up in the mainstream media.

Too many remain silent regarding the fact that Obama’s plan not only perpetuates but strengthens the mechanisms by which basic Constitutional protections are being circumvented. The very existence of Guantanamo represents the flouting of basic legal standards our nation is founded on. Closing the prison will be worse than meaningless if we simply import into the U.S. the practice of indefinite detention without charge, while refusing to hold accountable those responsible for torture.

Helen Schietinger, a retired RN, is an organizer with Witness Against Torture, a grassroots organization calling for an end to torture, the prosecution of those responsible for torture by the U.S. and the closing of Guantanamo Bay Prison.

7 comments for “The Catch-22 of Closing Gitmo

  1. Richard Sroczynski
    March 28, 2016 at 20:15

    Helen, Thanks for this very concise report and analysis, as well as articulating many of the fears many of us share. Hope it serves to help to cut the current crap and to a just resolution.

  2. hyperbola
    March 23, 2016 at 18:04

    This is half-way bullshit.

    Closing Gitmo means getting the US military completely out of Cuba. 110 years of military occupation based on a false flag attack is enough.

  3. Alfred Nordeide
    March 20, 2016 at 14:26

    Democracy as a label and Dictatorship as the content .
    I was born in Norway in 1943 , my sister was born 5 – 6 years before , and I had an uncle who dies approximately 10 years before I was born , who committed incest crimes against his sisters . My sister had inherited some of my uncle’s incest tendencies , and after the second world war , when Norway entered NATO , Nato’s secret armies were established in Norway . The ideology of Nato’s secret armies were along Talmud lines , and from I started in primary school my older s?üsister were following me closely , in cooperation with secret state agencies of Norway and of NATO .
    In 1959 as far as I know , I got a secret sentence , as something as an enemy combatant , and an enormous number of murder attempts have been done against me . I worked as a dentist in Sweden 1968 and 1969 . I married in 1970 . But all the time I actually was in an everybody against one situation . In 1964 ? pointed out John C. Ausland as the man who led the assassination of JFK in 1963 . In 1984-1985 President Ronald Reagan contacted me , asked if ? had anything to say in my defense , and ? managed to tell him some facts . he checked my facts , and made me a judge on all my persecutors .
    But of course my enemies were extremely strong , and I was in an everybody against one situation .
    Olof Palme was murdered and Tsjernobyl was of course no accident , it was the way USSR was destroyed , as I told them when I emigrated to Ukraine in 1998 .
    I remarried in 2000 , and now ? am living in Turkey .
    In 1989 I talked to George Bush , who knew me , and now was president . And a psychic Henning Hai Lee Yang looked into the future and could see all the coming wars . I am no psychic , but Mantak Chia has written several books on interplanetary voyages and voyages to the outsk?rts of our galaxies .
    Also in Ukraine a psychic , Raisa Timofeevna , said the same .
    Because ? never liked to cooperate with the secret state agencies , I don’t know how much of the future wars and disasters were foreseen , but at least Bill Gates of Microsoft called my office in 1989 and said ? could buy shares in Microsoft , but he recommended I should sell them before 2000 .
    Almost everybody living in democratic countries sign documents not to tell anything about all the crimes done by secret state agencies .
    Who have and what has happened to freedom of expression when everybody sign all of these documents .
    I hope you can contact me , because I have never committed a crime , I am a norwegian citizen , I have a pension from Norway , and ? have a very dramatic history that could show how shallow democracy is and how much of a bluff western democracy really is .
    Like the title , democracy as a label , and dictatorship as a content .
    Best regards
    Alfred Nordeide
    Hurma Mahalesi, Sokak 252 , Gunaydin apt. 4 / 14

  4. Secret Agent
    March 20, 2016 at 05:50

    Just send them to the ICC and they will be held indefinitely while being investigated. Lots of precedence for this.

    Problem solved.

    Thank you very much.

  5. Sherrill Hogen
    March 19, 2016 at 19:48

    Excellent article, Helen. I hope it gets wide distribution. With you in the struggle, Sherrill

  6. Joe Tedesky
    March 18, 2016 at 16:39

    Many thanks to you Helen Schietinger, for this article. Way back in 2001 I saw this coming. America should have followed the guidelines of the Geneva Conference. Although taking advice from such learned people as John Yoo seemed to set the new standard for how America would go to war. The Patriot Act was even more insulting to America’s freedoms, and this one act will go down in American history, as being a crime against it citizens, for sure. Accountability for all these war crimes is never going to happen, as long as the U.S. allows it all to pass by without even a whisper of what should be done. Protesting will never help either, since we now live in a police state who will confront it, and because we now also have a MSM who will demonize it, as well. It will take a whole new generation of politico’s to take charge, and change the way we do what we do here in America.

  7. Herman
    March 18, 2016 at 12:34

    “My interpretation of the President’s plan is that in essence the U.S. will continue to indefinitely detain suspected terrorists (mostly Muslim men) based on an assessment of their future dangerousness and that this is considered justified under the law of war.”

    When we talk about a perpetual state of war we are in Orwell’s 1984 territory.

    The reflections about Germany are also apt. Just have to watch the movies and tv shows, and how many times disaster has been prevented by torturing one of the criminals to see the mindset that is pervasive in America.

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