By Andy Worthington, February 7, 2017
POSTSCRIPT Feb. 8: Please read Andy's latest update, based on a revised executive order that drops the torture plans, but proposes sending Islamic State prisoners to Guantánamo.
In a powerful letter to defense secretary James Mattis and CIA Director Mike Pompeo, six of the most prominent Democratic Senators in Congress, Mark Warner (Va.), Dianne Feinstein (Calif.), Ben Cardin (Md.), Jack Reed (R.I.) and Patrick Leahy (Vt.), the ranking Democrats on the Intelligence, Judiciary, Foreign Relations, Armed Services and Appropriations committees, respectively, expressed their profound and implacable opposition to the contents of a draft executive order leaked two weeks ago, intended to "review resuming CIA 'black site' detention and prohibited interrogation activities (potentially including, among other practices, waterboarding), making changes to the Army Field Manual on Interrogation, as well as sending additional detainees to the detention facility at Guantánamo."
As they explained in their letter, "Those reports, as well as comments by the President, have created alarm that this administration may be preparing a return to policies and practices that are ineffective, contrary to our national values, and damaging to our national security."
As the Senators also pointed out, "Torture is immoral and deeply contrary to the principles of this nation. Beyond that, it is widely recognized as ineffective and even counter-productive, as it produces unreliable information."
In a separate development, rights groups, including the American Civil Liberties Union, Amnesty International, Human Rights First and Human Rights Watch, wrote directly to Donald Trump, pointing out that "Torture is morally reprehensible. It has long been absolutely prohibited under both domestic and international law, a prohibition that Congress strongly reinforced on an overwhelming, bipartisan basis just last year."
The groups pointed out the opposition to torture from Trump’s own appointees to senior government positions, and also urged him to close Guantánamo. Stating that the prison's continued existence "violates our core values as a nation," they singled out "the two pillars on which it rests: indefinite detention without charge or trial, and a military commissions system seemingly incapable of delivering either fairness to defendants or justice to victims."
On Guantánamo, the Senators also urged the Trump administration to close the prison. Noting that the draft executive order claimed that it is in "the interests of the United States to maintain the detention facility at Guantánamo Bay," they reminded Secretary Mattis and Director Pompeo that "both the Bush and Obama administrations worked to close the detention center at Guantánamo because they realized that both the moral and financial costs were not justified and that there were better, more humane alternatives."
The full text of the Senators’ letter is below:
The Honorable James N. Mattis, Secretary of Defense
The Honorable Mike Pompeo, Director of the CIA
Feb. 3, 2017
Dear Secretary Mattis and Director Pompeo:
We are deeply concerned by reports that the Administration is considering an Executive Order to review resuming CIA "black site" detention and prohibited interrogation activities (potentially including, among other practices, waterboarding), making changes to the Army Field Manual on Interrogation, as well as sending additional detainees to the detention facility at Guantánamo. Those reports, as well as comments by the President, have created alarm that this administration may be preparing a return to policies and practices that are ineffective, contrary to our national values, and damaging to our national security.
The United States Constitution, numerous statutes, and international legal obligations have long provided the legal framework for the prevention of and prosecution for acts of torture or other cruel, inhuman, or degrading treatment or punishment. To strengthen this prohibition, the Fiscal Year 2016 National Defense Authorization Act prohibits interrogation techniques not authorized by the Army Field Manual, as well as any changes to the Field Manual involving the use or threat of force. The statute also requires that the International Committee of the Red Cross be provided notification of, and prompt access to, detainees held by the United States.
Torture is immoral and deeply contrary to the principles of this nation. Beyond that, it is widely recognized as ineffective and even counter-productive, as it produces unreliable information. The use of torture and secret foreign prisons were a boon to terrorist groups, helping their propaganda and recruitment efforts. Moreover, these practices frayed our relations with key allies, some of whom have faced legal liability before their own or international courts. Similarly, these practices put our own forces and personnel at risk of legal liability and being subjected to harsh treatment when they are detained. Reckless talk of torture shows a stunning disregard for the men and women who serve this country and seek to uphold this country’s highest standards as well as the allies who have stood shoulder-to-shoulder with us.
Lastly, both the Bush and Obama administrations worked to close the detention center at Guantánamo because they realized that both the moral and financial costs were not justified and that there were better and more humane alternatives. As President Obama stated in a recent letter to Congress on this issue, "history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to bring it to a responsible end."
We cannot go back to those practices if we want the United States of America to continue to serve as a beacon of justice, law and human rights for the world.
We appreciate your firm commitments in the confirmation process to follow the law. We remain firmly opposed to changing the law or any policy that could bring back these abhorrent and ineffective practices.
Thank you for your attention to this important matter.
Sen. Mark Warner (D-Va.)
Sen. Dianne Feinstein (D-Calif.)
Sen. Ben Cardin (D-Md.)
Sen. Jack Reed (D-R.I.)
Sen. Patrick Leahy (D-Vt.)
* * * * *
Here at Close Guantánamo, we warmly welcome the Senators’ letter, following up on our article last week calling for the draft executive order to be scrapped.
We also appreciate the mention of President Obama’s letter to Congress, in which, with typical eloquence, he stated:
For 15 years, the United States has detained hundreds of people at the detention facility at Guantánamo Bay, a facility that never should have been opened in the first place. Rather than keeping us safer, the detention facility at Guantánamo undermines American national security. Terrorists use it for propaganda, its operations drain our military resources during a time of budget cuts, and it harms our partnerships with allies and countries whose cooperation we need against today's evolving terrorist threat. By any measure, the costs of keeping it open far exceed the complications involved in closing it.
Obama also provided an updated plan for how to close Guantánamo responsibly, which we hope Secretary Mattis in particular examines closely.
The plan covers four areas, as follows:
(1) Securely Transferring Detainees Designated for Transfer by the President’s National Security Team
Five of the 41 men still held have been approved for transfer, and, as President Obama notes, contradicting the draft executive order’s intention to suspend the transfer of prisoners, "A decision to designate a detainee for transfer reflects the best judgment of U.S. Government experts, including counterterrorism, intelligence, diplomatic, and law enforcement professionals, that, to the extent a detainee poses a continuing threat to the United States, the threat could be sufficiently mitigated — and the national interest would be served — if the detainee were transferred to another country subject to appropriate security measures."
Addressing fears of recidivism, President Obama notes, "Any potential incidence of reengagement is taken very seriously and relevant agencies have worked in close coordination through military, intelligence, law enforcement, and diplomatic channels to mitigate any threat posed by such activities, including taking follow-on action when necessary."
(2) Continued Review of Detainees by the Periodic Review Board
Obama states that, "Consistent with our values and our international obligations, it is imperative to ensure that law of war detention continues only when necessary and lawful," and explains how the PRBs, created by an executive order in 2011 (although they did not start until 2013), have been successful at assessing whether the continued detention of prisoners not already approved for release or facing trials "remains necessary to protect against a continuing significant threat to the security of the United States." See our definitive Periodic Review Board list here.
(3) Continuing Military Commissions and Pursuing Disposition Options for Remaining Detainees
In this section, Obama attempts, unsuccessfully, to defend the military commissions at Guantánamo, which has proven to be a broken system. He tacitly acknowledges this by referring to the commissions' "significant, ongoing setbacks and the complexity of addressing novel issues in the military commissions setting," but then tries to claim that, "to address offenses recognized by the international laws of war," they "continue to be an option for individuals who remain detained at Guantánamo." However, the opening line of this section confirms that, in contrast, "The most effective option for dealing with individuals detained outside military theaters continues to be our strong, proven federal courts." See Human Rights First's fact sheet, Trying Terror Suspects in Federal Court, for further confirmation of this.
(4) Relocation of a Limited Detainee Population to the United States
Obama’s last point concerns the eventual closure of Guantánamo, which, of course, he failed to achieve. He notes, however, that, "Based on past reviews and a 2015 survey of potential detention locations in the United States, the Department of Defense has determined that, with modifications, a variety of Department of Defense, Bureau of Prisons, and state prison facilities could safely, securely, and humanely house a limited number of Guantánamo detainees for the purpose of military commissions and continued law of war detention, as necessary and subject to continued periodic review."
Moreover, as he explains, with reference to the huge cost of Guantánamo, a burden that might encourage Donald Trump to think twice about its continued existence, "Transferring the small number of remaining detainees to a U.S. facility and closing the detention facility at Guantánamo would result in substantial cost savings, enabling the Department of Defense to put these resources towards meeting the challenges the United States faces around the world."
As he proceeds to explain, in 2015, it cost approximately $445 million to run the prison at Guantánamo, and, in future, approximately $225 million more will be needed for reconstruction. In contrast, it costs just a fraction of these amounts to hold prisoners on the U.S. mainland.
The day after the Senators sent their letter to James Mattis and Mike Pompeo, the New York Times reported that the Trump administration "appears to have backed off for now on its consideration of reopening overseas 'black site' prisons," and noted that, last Thursday, the White House "circulated among National Security Council staff members a revised version of the draft order on detainees that deleted language contemplating a revival of the CIA prisons, according to several officials familiar with its contents."
In the Times article, Charlie Savage also noted that the revised draft "would not revive a 2007 executive order issued by President George W. Bush, and later rescinded by President Barack Obama, that laid out a limited understanding of which torture techniques count as war crimes under the Geneva Conventions," and that it would also not revoke the two executive orders that President Obama issued on his second day in office in January 2009 — the first preventing the CIA from operating secret prisons and requiring all interrogators to only use techniques approved in the Army Field Manual, and the second being what Savage described as "Mr. Obama’s ill-fated directive to close the Guantánamo prison within a year."
This is good news, of course, but on Guantánamo Savage also noted that "the revised draft is said to have a provision asserting that all contradictory sections of previous orders are revoked, which would implicitly repeal the part of Mr. Obama’s Guantánamo order that declared an intention to close the prison by the long-missed deadline."
We will continue to monitor very closely Donald Trump’s intentions regarding Guantánamo and torture, but it does seem that the widespread criticism that greeted the leak of the draft executive order has made some impact. And if torture is off Donald Trump’s menu, as it must be, then perhaps we have a renewed opportunity to persuade him that Guantánamo must be closed.