The Guantanamo Bay Detention Camp should not exist. It costs U.S. taxpayers $1.2 million per day, and inflicts incalculable damage to America’s reputation. The Obama Administration knows this, and waves of hunger strikes by prisoners over the past several months have prompted renewed efforts to empty it. Friday, the White House revealed it intends to send two prisoners home to Algeria. Last month, the president picked Clifford Sloan, a D.C. lawyer, to reopen the State Department's Office of Guantanamo Closure, which will seek ways to send home the 86 prisoners who were cleared for release years ago (some during the Bush administration). And the Pentagon last week announced new parole-style hearings to consider releasing some of the prisoners who won’t be tried for war crimes but were considered too dangerous to let go.
These are improvements indeed, but they're not enough. It's time for the military to step down from running the camp.
For even if these latest changes succeed, Gitmo will stay open for years. A clueless Congress has blocked transfer of prisoners to any other U.S. territory, imposed onerous restrictions on transfer to other territories, and tried to eliminate funds for closure. The planners of the 9/11 attacks aren’t going anywhere soon. Despite Al Qaeda’s decimation, and a possible modus vivendi between the Taliban and the U.S., we will be at war with various terrorist organizations for a long time. Future battles will yield at least some captured prisoners who should be kept from returning to the fight but can’t be tried in civilian courts for lack of evidence. So Gitmo will continue to exist, and if the last 11 years is any indication, the military will continue to do a terrible job in running it.
The many failures at Guantanamo aren’t entirely the military’s fault, of course. Its mission there is, and always has been, an ill-conceived and incoherent one. The original assignment was to operate an interrogation center on the East German/North Korean model—without quite admitting it. That model has been abandoned, thanks to the torture scandals, but the military doesn’t know what should replace it. No longer are all prisoners subjected to harsh measures (including prolonged isolation) designed to destroy the will to resist. Daily living conditions are no longer determined by one’s “cooperativeness” with interrogators. The average Gitmo prisoner perceived as well-behaved can live, eat, and pray communally, play soccer, and even watch TV and read some newspapers and Agatha Christie novels in Arabic—although John Grisham is forbidden.
Yet the military remains on a war footing at Gitmo. It doesn’t seem to know what else it should do. For prisoners who break the rules—by refusing to eat, for example—coercion in the form of brutal force-feeding, isolation, and other measures from Gitmo’s darker days are still used. And the military still views prisoners’ resort to the civilian legal system, including their representation by counsel, as a form of “lawfare” against the U.S. that must be resisted. Attorneys’ visits, as I know from personal experience, are severely restricted and burdened by byzantine protocols. Communication with, and knowledge of, the outside world—and strangely, the U.S. legal system in particular—are viewed as potentially threatening to the mission.
This ill-defined mission, combined with the peculiarities of military staffing, has led to sometimes-deadly incompetence. The camp’s current warden, Col. John Bogdan, a year ago became commander of the Joint Detention Group (JDG) overseeing staffing at Guantanamo. He had no prior experience running a prison, and neither did most of the guards under his command. Like his predecessors, Bogdan will likely serve a short while longer before being transferred to another post—only to be replaced by another commander with no prison-management experience. Most guards assigned to the JDG, meanwhile, serve just one year.
Bogdan is a disciplinarian, at least where prisoners are concerned. But his methods have all the success of Captain Bligh’s. Since Bogdan took charge, Guantanamo has seen the most serious mass resistance to its rules to date with a hunger strike approaching its six month. He has also presided over the 2012 suicide of one of my former clients, Adnan Latif, a Yemeni with severe mental illness. Adnan suffered a traumatic head injury in a car accident and traveled to Afghanistan seeking free medical treatment. After 9/11, he was captured, handed over to U.S. soldiers, and wound up at Gitmo in 2002. Eleven miserable years later, Adnan killed himself using some of the medication from a bizarre cocktail the military’s doctors prescribed him.
Adnan’s death was unnecessary, and it illustrates why the military has failed to operate Guantanamo effectively. His combination of mental and physical health problems required especially delicate handling, but the belligerent Gitmo commanders treated him like a dangerous warrior, using strong disciplinary measures against him for even minor infractions.
As human rights lawyer David Remes, who also represented Adnan, and reporter Jason Leopold have explained in detail, the high turnover among JDG staff and their lack of experience led directly to Adnan’s death. Reports from the military’s own investigation, obtained through relentless FOIA requests by Leopold, reveal that Standard Operating Procedures at Gitmo were in conflict, were ignored, and weren’t enforced. The day before he died, suffering from acute pneumonia, Adnan was transferred to an isolated cell, punished once again for acting out. While on “line of sight” duty, guards’ failure to follow SOPs permitted Adnan to overdose without being discovered for half a day. This happened despite the fact that similar failures had permitted another prisoner to commit suicide six months earlier.
No military commander was foolish enough to call Adnan’s suicide “an act of asymmetrical warfare against us,” as one had after three suicides in 2006. But the Gitmo commanders’ response to his death was typical—crack down on the prisoners and isolate them. Adnan’s suicide inspired the military to revive a misguided policy of searching prisoners’ Korans and invent one that was arguably worse—searching their genitals for “contraband.” These measures predictably caused the camp to erupt in mass hunger strikes, to which the commanders in turn responded by cracking down further.
The evidence is overwhelming: The military should not be running the prison. So who should? The answer lies in Israel.
After recognizing that military prisons were riddled with inefficiency and security problems, the Israeli government, over the past ten years, has shifted control over the detention and transfer of terrorists to civilian agencies. These agencies’ employees are trained specifically to handle these types of prisoners. The average guard serves for several years—far longer than the unlucky U.S. troops stationed at Gitmo.
Last month I had the chance to visit one of those civilian-run prisons. My visit was sponsored and arranged by the Washington-based Foundation for the Defense of Democracies, a think-tank seeking to educate the public about the threat that democracies such as Israel face from terrorism. The prison was located within Israel's borders—not far, in other words, from territory controlled by its enemies.
I was skeptical about the visit. I knew all too well how the U.S. military has used carefully orchestrated, Potemkin Village-like “inspections” to persuade gullible politicians and journalists that Guantanamo prisoners lived the good life in a tropical paradise. I also knew that the Israeli military still detains some terrorist suspects, albeit for short periods, and faces accusations of abuse.
Nonetheless, during my visit, I was struck by the contrast with Gitmo. These prisoners lived in groups in communal cells facing a central courtyard in which they could exercise and talk. The interaction between the guards, prisoners, and prison directors evidenced clear protocols and professionalism: It was calm, routine, even friendly. I also had no sense that the prison-service employees thought of themselves as fighting a war against the prisoners or their lawyers. I met with three prisoners who had been elected by factions among the prisoners (corresponding to affiliations with political organizations outside the prison) to represent their interests with the prison management. Two were serving life sentences, one for planning a terrorist attack that killed many civilians. Our conversation was observed by an intelligence officer, but we were free to ask direct questions.
If Israel—a tiny country facing a direct, existential threat from terrorism within its own borders and from neighboring countries—can use civilian agencies to house its terrorist prisoners, why can’t the United States do the same?
Gitmo commanders have recently reached out to Israeli prison officials for advice. The best advice the Israelis could offer would be, “hand over control to civilians.” Military management has proven to be astonishingly expensive, inefficient, and ineffective. A well-trained and experienced civilian cadre could be quickly brought in to take over prison camp operations, provide the continuity of personnel and balanced perspective desperately needed there, and end the useless war against the prisoners and their lawyers. It would be cheaper, too, and just might prevent the next suicide or hunger strike.
Robert Knowles, assistant professor of Law at Valparaiso University Law School, is a national security law expert and represented detainees at Guantanamo Bay. Follow him on Twitter @RobertHKnowles.