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Center for Ethics and the Rule of Law

 


Guantanamo Bay, interrogation and torture, military commissions • December 10, 2021

Congress must exclude the provision banning transfers from GTMO to the U.S. from the 2022 NDAA

by Ashley Fuchs, Natalie Heller, Gloria Lyu, and Anya Tullman

 

Congress is currently debating the passage of the National Defense Authorization Act for Fiscal Year 2022 (NDAA), a “must-pass” bill that specifies the annual budget for the Department of Defense. Since 2012, the NDAA has included a provision banning the transfer of detainees held at the Guantánamo Bay detention facility (GTMO) to the mainland United States. Congress must do away with this provision that continues to forestall GTMO’s closure. Notably, this provision impedes the trial and sentencing process by foreclosing any viable alternative to the current military commissions, a system plagued by inefficiency and controversy. Furthermore, the provision rests on the false assumption that detainees cannot be safely incarcerated in the United States—arguments articulated as recently as the United States Senate Judiciary Committee’s December 7, 2021, hearing on “Closing Guantánamo: Ending 20 Years of Injustice.” (Read CERL’s letter to the Committee.) Since many mainland U.S. prisons have comparable security measures to GTMO and already house convicted terrorists, punitive punishment and safety are not sufficient reasons to include the ban on transfers in the NDAA. Congress should take actionable steps to remove the barriers preventing detainee transfers to Article III courts for trial and subsequent detention in mainland prisons, thereby giving President Joe Biden the discretion to determine whether such transfers are warranted for cases that are not resolved through guilty pleas.

In the current Senate draft of the 2022 NDAA, Section 1031 includes an extension of the existing prohibition on the “use of funds for transfer or release of individuals detained at United States Naval Station, Guantánamo Bay, Cuba, to the United States.” This provision first emerged in the 2012 NDAA as a response to former President Barack Obama’s plans to close GTMO; an explicit ban on transfers to the U.S. was mentioned in the 2015 NDAA. The continuance of this prohibition in the current Senate draft poses a threat to the executive branch’s efforts to shutter the facility, a fault articulated in the Office of the President’s Statement of Administration Policy. This document revealed President Biden’s strong objections towards this provision, although it did not indicate a veto threat if the provision was included.

The current House NDAA bill does not include this same prohibition; it bans only the use of funds to transfer detainees to specific countries. The House bill includes fewer limitations on GTMO spending, whereas the Senate version specifies other spending prohibitions on the closure of GTMO and the construction of facilities to house detainees. The Senate and the House will ultimately need to reconcile these differences.

Importantly, this provision has become a partisan issue. For example, Democratic Senator Dick Durbin argued that the NDAA should go as far as closing GTMO, whereas Republicans have made clear their disagreement and have objected to the House NDAA bill. Given that President Biden did not threaten to veto based on this prohibition, it may be included as a way to compromise and expedite the NDAA’s passage.

Implications for trial and sentencing

Over the past twenty years, the military commissions system—a hybrid of military courts-martial and Article III federal criminal courts authorized by Congress in the 2006 and 2009 Military Commissions Acts (MCA)—has proven to be inefficient and ridden with legal and ethical problems in its trial procedures and use of evidence. Since their inception, the military commissions have led to a mere eight convictions, of which four have been overturned while the rest remain on post-trial appeal. Article III courts, however, have shown themselves to be an effective system capable of trying terrorism cases while upholding fundamental due process rights. Between September 11, 2001, and May 2013, Article III federal courts settled 509 terror-related cases. In the absence of a “sunset clause” establishing a time limit on the military commission trials, many of the GTMO detainees remain in “indefinite detention” with no hope of trial, sentencing or transfer. As the prospects for a fair trial become ever more elusive, the 9/11 families and American public writ large are denied retributive justice.

Moreover, the military commissions have been criticized for permitting the use of coerced and hearsay evidence that would not be admissible in Article III courts. Even though the 2009 MCA reformed some of the evidentiary standards of the 2006 MCA to limit the admission of improperly obtained evidence in military commissions trials, it allows the secretary of defense to grant exceptions to the rules of evidence in consultation with the attorney general. §949(a) of the 2009 MCA states that exemptions “may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.” This exception-granting power may lead to statements obtained through torture at CIA black sites being used in military commissions trials. The substandard evidentiary rules used for military commissions undermine the integrity of the rule of law; the remedy lies in transferring detainees to federal courts where their due process rights can be properly protected.

Implications for incarceration

During the recent Senate Judiciary Committee hearing, Senator Charles Grassley remarked, “Bringing terrorists to the United States does not protect the American people. Releasing terrorists who will only seek to attack us again does not protect the American people.” Such arguments that legitimize the NDAA provision on the basis of security and punitive punishment are ill-founded. Precedent suggests that GTMO detainees, if transferred to the U.S. mainland, would be incarcerated in the only remaining federal super-maximum security (also known as “supermax”) prison—United States Penitentiary, Administrative Maximum Facility in Florence, Colorado (ADX Florence). In fact, approximately 30 convicted terrorists are already imprisoned there, most of whom live under additional restrictions in the Special Security Unit (otherwise known as “H Unit”). Notable inmates include Mohammad Salameh and Ramzi Yousef who were imprisoned for their role in the 1993 World Trade Center bombing, as well as Zacarias Moussaoui who was implicated in the 9/11 attacks.

Built in 1994, ADX Florence was the fruit borne from over 100 years of abuse, confinement, and isolation in the U.S. prison system. Eastern State Penitentiary (1829-1970), known as the birthplace of solitary confinement, institutionalized many of the violent practices often associated with incarceration. Eastern State prisoners were regularly subjected to prolonged periods of solitary confinement, placed in dark or bare cells, forced into cold baths, confined by straitjackets, tranquilizing chairs, or iron gags, beaten with sticks, and given reduced food rations. Approximately twelve years after Eastern State’s closure, a series of violent and fatal altercations between guards and inmates at United States Penitentiary, Marion (“USP Marion”), initially built to replace Alcatraz, sent the entire facility into a 23-year period of permanent lockdown (until the facility was renovated in 2006). Inmates were confined in concrete cells measuring 6-by-8ft for 23 hours per day, physically abused and sexually humiliated by corrections officers, and deprived of most privileges. Furthermore, personal property and religious articles were often seized and destroyed. USP Marion beckoned a new era of supermax prisons that championed isolation, psychological control, and violence. In the infamous Pelican Bay State Prison, for example, inmates have been scalded, systematically denied access to medical treatment, physically abused, put in painful stress positions, and subjected to sensory deprivation. By 1997, the National Institute of Corrections reported that 34 states had a supermax facility.

ADX Florence fits squarely within this penal lineage. Cells at ADX Florence have “thick, concrete soundproof walls, a door with bars and a second door made of solid steel.” Inmates spend between 22 and 24 hours per day locked in these 12-by-7ft cells, completely devoid of meaningful human contact. Characterized as a “clean version of hell” by Warden Robert Hood (2005-2006), these confinement conditions have caused prisoners with and without preexisting mental health issues to engage in horrific acts of self-harm (a lawsuit was filed in 2011). One former ADX prisoner described the psychological effects of his imprisonment in ADX Florence: “The boxcar cell is designed to gouge prisoners’s senses by suppressing human sound and communication with others. It puts blinders on one’s eyes and limits on touching to lifeless objects. A boxcar cell is designed to inflict physical, psychological, and spiritual isolation. You will feel the pain.” Accounts like this are commonplace at ADX Florence. In 2018, Zacarias Moussaoui filed a federal complaint contending that solitary confinement in ADX Florence amounted to “psychological torture.” Beyond isolation, doctors and guards frequently force fed prisoners participating in hunger strikes, despite the World Medical Association decrying the practice as “never ethically acceptable.” Prisoners at ADX Florence recalled incidents where guards inserted a tube into their nostril that extended through their throat and into their stomach. Mohammad Salameh said he had been force-fed nearly 200 times over ten years.

Although GTMO has its own unique history, several of the camps were intentionally modeled after supermax prisons and multiple solitary confinement facilities impose similar methods of restriction, isolation, and sensory deprivation. At Camp 6, for example, cells have frosted windows to limit natural sunlight, and lights are kept on at all times to disrupt detainees’ sleep patterns. Attorney Brett Mickum remarked that his client, Bisher al-Rawi, is “slowly but surely, slipping into madness.” Similar to ADX Florence, numerous hunger strikes have occurred at GTMO since it opened; the largest strike took place in 2005 with 200 participants and resulted in one hospitalization. Strikers protested their lack of due process and inhumane living conditions, calling for “starvation until death.” In response, guards strapped strikers into emergency restraint chairs and force fed them through intravenous tubes. In the aftermath, one detainee said he “had never experienced such pain.”

Some experts posit that GTMO detainees might suffer more severe psychological and physical consequences if they are transferred to a supermax facility. After serving eight years in ADX Florence, Zacarias Moussaoui wrote to a federal judge in 2014 offering to provide information about al Qaeda in exchange for transfer from ADX Florence to GTMO in order to escape repeated assaults from guards and inmates.

With that being said, the potential for worse conditions at ADX Florence should not be misconstrued as a reason to keep GTMO open. Undoubtedly, it is imperative that the United States improve conditions at ADX Florence to ensure that all prisoners’ human rights are protected; however, addressing human rights concerns at supermax prisons and closing GTMO should be treated as two separate issues. GTMO has garnered international attention as a human rights atrocity and runs contrary to the American ethos of justice; its closure should be a national security priority for the Biden administration. Our commentary on ADX Florence is meant to underscore that security concerns and punitive punishment are not valid reasons to forestall GTMO’s closure or to support the NDAA provision.

Conclusion

Passing the NDAA without the provision against transfers is the best course of action. On the one hand, it will expedite the trial and sentencing for detainees who can be transferred to federal courts, thereby providing a sense of closure for 9/11 families and the American public writ large. On the other hand, it keeps open the possibility for secure and effective incarceration in the U.S. since detainees would likely be placed in a supermax facility. (Although certain lawmakers support punitive incarceration for GTMO detainees, we as authors do not believe this approach reflects the respect for human rights and dignity that should form the foundation of the U.S. penal system.) In the coming weeks, Congress must work with the Biden administration and embrace the renewed political vigor to shutter GTMO. Debates surrounding the NDAA are critical to making this long-awaited policy objective a reality.

The opinions expressed in this post are those of the authors and do not necessarily represent CERL’s official views.

Ashley Fuchs is a political science and classical studies double major at the University of Pennsylvania’s College of Arts and Sciences and a Benjamin Franklin Scholar. She was a 2020 and 2021 summer intern at the Center for Ethics and the Rule of Law.

Natalie Heller is a political science and criminology double major at the University of Pennsylvania’s College of Arts and Sciences. She was a 2021 summer intern at the Center for Ethics and the Rule of Law.

Gloria Lyu is a junior at Yale College studying History and Ethics, Politics, and Economics. She was a 2021 summer intern at the Center for Ethics and the Rule of Law. Her research was supported by the Les Aspin ’60 International Public Service Fellowship from the Jackson Institute for Global Affairs.

Anya Tullman is a junior in the College of Arts and Sciences at the University of Pennsylvania where she studies political science and criminology. After graduating, she hopes to pursue her JD and a career in the national security field. She was a 2021 summer intern at the Center for Ethics and the Rule of Law.

 

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