Cliff Sloan on Closing Gitmo

In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere to steps necessary to close the facility, particularly the misconceptions that the recidivism rate is high and that all of the detainees there pose a continuing threat.

Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.) … Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.

In light of these statistics, those who argue against continuing transfers are indeed, as Sloan puts it, “constrained by an overabundance of caution.” As I’ve noted here before, and described in detail in a piece just out in the Cardozo Law Review, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end. Thanks to Sloan’s efforts and others, other countries are beginning to welcome former Gitmo detainees. But we have also returned prisoners to homelands still suffering violent political instability, particularly the post-World War European nations whose economic, political, and state security systems were essentially non-functional. We likewise returned prisoners who still harbored violent intentions toward the United States; in World War II, among the first prisoners we released were those Nazis whose enmity was “most hardened” against us (principally because they were not good sources of prisoner labor). And we released prisoners who had ideological allies with whom they could reaffiliate post-detention; we returned thousands of communist prisoners to communist nations at the height of a half-century long war that was “hot” (in Korea and against non-state groups in Vietnam) almost as often as it was cold.

In all of these conflicts, we calculated that any short term tactical risk we might bear by the release of a few individuals was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with prevailing law. Sloan notes: “As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, ‘The greatest single action the United States can take to fight terrorism is to close Guantánamo.’” The strategic benefits here are clear. It’s as good a time as any to recall a little history and seize them.