Senate Looks At Closing Guantanamo, But Will It Really Happen?

Familiar arguments and lack of urgency at first Guantanamo hearing since 2009

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Sen. Ted Cruz, Sen. Dick Durbin and Sen. Patrick Leahy (from left) at the Senate Judiciary Committee's hearing on closing the prison at Guantanamo Bay.
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A Senate committee took up the issue of closing the detention center at Guantanamo Bay yesterday for the first time since 2009 – but anyone looking for signs that the prison will be closed in the near term was likely to be disappointed. The hearing was called by Sen. Dick Durbin (D-Illinois), with a witness list including former members of the military and human rights advocates. In opening remarks, Durbin said he "never imagined in 2013 that Guantanamo would still be open," and yet, he added, some of his colleagues argue it should remain open indefinitely. Sen Patrick Leahy (D-Vermont) criticized the practice of indefinite detention, saying it "violated our most basic principles of justice," while Sen. Dianne Feinstein (D-California) said that the cost of holding prisoners there is $2.67 million per detainee, higher than previously reported.

A months-long hunger strike by detainees has put the issue of how to close Guantanamo back in the headlines; President Obama addressed the subject in his May 23rd speech on national security. Since then, a special envoy position in the Defense Department has been created, but it remains vacant. The State Department envoy for Guantanamo, Clifford Sloan, hasn't shown any visible progress in restarting detainee transfers. As of now, 69 detainees remain on hunger strike, with 45 on the force-feeding list. Though the number of hunger strikers has decreased since July 11th, the number of detainees listed for force-feeding has remained nearly constant. There are a total of 166 people held at Guantanamo, 86 of whom were cleared for transfer by a 2010 Obama review task force.

In the hearing, ranking member Sen. Ted Cruz (R-Texas) suggested that President Obama thinks the United States should take a "holiday" from the war on terror. (Leahy pushed back on this characterization of the president's policies.) Cruz and others brought up the perceived threat of detainee recidivism several times during the hearing, which lasted one hour and 45 minutes. He cited a Director of National Intelligence report that put recidivism at 28 percent for people released from Guantanamo – though Human Rights First president and CEO Elisa Massimino, a witness on the panel, noted that this figure counts detainees with associations with militant groups, as opposed to the number that have actually engaged in violent activity themselves. Other credible reports put that number much lower, in the low single digits.

Durbin, meanwhile, suggested that there was no need to worry about releasing Guantanamo detainees, because the U.S. could always kill them using drones if necessary – as happened earlier this year with Saeed al-Shihri, a top operative in al Qaeda in the Arabian Peninsula. It was an unintentionally revealing statement that gave credence to human rights advocates' belief that Obama and his Congressional allies favor killing terror suspects over detaining them.

At other points, Durbin seemed to praise the extreme isolation practiced in U.S. maximum security prisons as proof that Guantanamo detainees could be held safely on U.S. soil. Durbin previously held the first-ever hearing on the detrimental effects of solitary confinement on U.S. prisoners.

"The subtext of too much of today's hearing was that the detainees aren't people, but powder kegs," Amnesty International USA advocacy advisor Naureen Shah tells Rolling Stone. "But we should look at the facts: dozens of these men have been cleared for transfer by the U.S. government. Detainees at Guantanamo should either be released or charged and fairly tried in federal courts."

Witnesses at the hearing repeatedly mentioned that the federal court system has effectively tried over 500 terrorism-related cases. Though the figure is technically correct, journalist Trevor Aaronson has shown in his book The Terror Factory that many of those cases were in fact created and managed by the FBI through stings, and that the actual number of legitimate terrorist threats has been far lower.

House Rep. Adam Smith (D-Washington) also testified before the committee about the need to close Guantanamo. While Smith stated that the Constitution applies fully at the prison because of the Supreme Court's 2008 ruling in Boumediene v. Bush, which determined detainees had habeas corpus rights, this is not entirely accurate. The question of whether protections such as the Sixth Amendment apply there remains open, and Judge James Pohl, currently presiding over the two cases before the commission, has so far taken the position of deciding constitutional applicability on a case-by-case basis.

So what comes next? Other recent news suggests that little will change at Guantanamo in the short term. A federal ruling that would have halted a controversial search procedure by Guantanamo guard force that includes genital pat-downs has been stayed by a court of appeals, and a different judge recently criticized the practice of force-feeding but determined it was not in the court's jurisdiction to intervene. The Pentagon recently announced it would establish Periodic Review Boards to determine whether any detainees selected for indefinite detention could be deemed transferrable – two years after the Obama administration called for their creation – though no date for those reviews has been set.

Before the hearing was adjourned, Durbin offered an apology for the Senate's lack of action on Guantanamo: "I'm sorry it's been five years since we've had a hearing."