End 16 Years Of Injustice

Alberto Mora, U.S. Navy’s Former Top Lawyer, Explains How Donald Trump Might Close Guantánamo

A composite picture of Alberto J. Mora, former General Counsel of the Department of the Navy, and Camp 5 at Guantánamo.

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By Andy Worthington, February 8, 2018

Forgive us for what must appear to be a weirdly upbeat headline, given that it’s just over a week since Donald Trump issued a practically pointless but symbolically malevolent executive order keeping the prison at Guantánamo Bay open. However, as Alberto Mora, the General Counsel of the Department of the Navy under George W. Bush, has just explained in an op-ed for the Atlantic’s Defense One website, despite Trump’s seeming obsession with keeping Guantánamo open, it may be that a review of detention policies that he included in his executive order will conclude that he should close it after all.

Alberto Mora, who nowadays is a Senior Fellow at the Harvard Kennedy School's Carr Center for Human Rights Policy, played a key role in resisting some of the most dangerously lawless innovations of the Bush administration in his role as the Navy’s General Counsel. In December 2002, when he was advised by David Brant, the director of the Naval Criminal Investigative Service (NCIS), that military interrogators, were "engaging in escalating levels of physical and psychological abuse," as Jane Mayer described it in a groundbreaking New Yorker article in 2006, he was appalled, and when Brant revealed that the abuse wasn’t "rogue activity," but was "rumored to have been authorized at a high level in Washington," he confronted William J. Haynes II, the Pentagon's General Counsel, and Donald Rumsfeld, who had approved a memo authorizing torture at Guantánamo on December 2, 2002, unearthing the memo, and threatening to go public about its contents unless it was withdrawn. Rumsfeld complied, but secretly convened a working group to reinstate the policies Mora objected to, which had the approval of the Justice Department’s Office of Legal Counsel, as written by John Yoo, the author of the infamous CIA “torture memos,” which cynically sought to redefine torture so that the CIA could use it.

As a result, Mora is well-placed to comment on Guantánamo 15 years on from his struggle to prevent the use of torture at the prison, and his suggestion that Donald Trump might close it is based on Trump's "command to Defense Secretary Jim Mattis to 'reexamine our military detention policy' and report back to him within 90 days and his request to Congress to ensure that 'we continue to have all necessary power to detain terrorists.'" I’m not sure that I agree with Mora that this shows "unexpected open-mindedness" on Trump’s part, and I cannot agree with his assessment that, in "asking Mattis to take charge," and also including Congress in an assessment of detention policy, Trump "acted prudently and, dare I say it, wisely." 

Mora seems to have more faith in Congressional Republicans than is warranted, based on their behavior in general over the past 16 years, and I fear that his regard for Mattis — presumably, as colleagues in the armed services — may also be misplaced, but it is on that point in particular that he may be onto something — that Mattis may recognize that the existing, post-9/11 architecture of detention doesn’t work, is in need of reform, and, moreover, needs bringing back in line with how the rest of the U.S.’s allies operate.

We shall have to wait and see, but here at "Close Guantánamo," we encourage you to read the whole of Mora’s op-ed, cross-posted below, and to reach your own conclusions about the six points he raises. Briefly, he calls, firstly, for detention policies to be rationalized, because, at present, "tactical operations are being hamstrung" by a ban on holding any prisoners for interrogation in the U.S., by the use of ships for interrogations, which he calls "a wasteful use of valuable assets," and because prisoners are being killed rather than captured.

He also notes that indefinite detention — the hallmark of Guantánamo, 16 years on from its opening — is an "endless headache" that should be brought to an end, despite the fact that post-9/11 law permits it, and advises that, if prisoners can be tried, they should be, but in federal courts, and not in the broken military commission system at Guantánamo, which, he notes, even Trump has referred to as one consisting primarily of "staggering inefficiency."

He also calls for detention operations to be "conducted in strict conformity with U.S. and international law, including the Geneva Conventions," and for them to be "harmonized with those of our allies," noting, accurately, that, "One of the unfortunate mistakes made by the Bush administration in its response to 9/11 was to attempt to create a different legal architecture than the one that the international community had crafted so painstakingly out of the horrors of World War II." As he proceeds to explain, "Our allies could not and will not condone torture, abandon due process protections as the military commission system has done, or support Guantánamo’s system of indefinite detention."

And finally, Mora focuses on the outrageous cost of Guantánamo, noting that "[t]he cost of holding a single Guantánamo detainee is about 139 times more expensive than housing a prisoner in the escape-proof Supermax prisons in the continental United States."

As I mentioned above, I have no great faith that either Mattis or Congress will respond sensibly to Mora’s proposals, because Republicans have generally done very little to show that they are anything but content with Guantánamo’s continuing existence, and, likewise, there has been little suggestion from the military that those in positions of power and responsibility are unduly appalled by the fundamental wrongness of holding people indefinitely without charge or trial.

But, as I also concede, I may be wrong, and I certainly hope I am. Over 16 years since Guantánamo opened, all arguments for its closure are to be welcomed, especially from someone like Alberto Mora, whose criticism — like that of the dozens of general and admirals who have regularly called for the closure of Guantánamo — comes from those inside the U.S. establishment rather than from those with no experience of the workings of the U.S. military at its highest levels.

How Trump Just Might Close Guantánamo Prison
By Alberto Mora, Defense One, February 5, 2018

The president asked SecDef and Congress to ensure that detention policies support warfighting aims. That should mean shutting Gitmo down.

Will President Trump close the prison camp at Guantánamo Bay?

This question may sound preposterous. After all, President Obama, who called the prison a threat to national security and American ideals, actually tried to close it. President Trump, by contrast, is on record as vehemently favoring not only its continuation but its expansion. On Jan. 30 he reaffirmed that commitment both in his State of the Union address and in an executive order revoking President Obama’s order commanding its closure. 

Why, then, even raise the prospect of closing Guantánamo during this administration? The answer lies in two related actions recently taken by the president: his command to Defense Secretary Jim Mattis to "reexamine our military detention policy" and report back to him within 90 days and his request to Congress to ensure that "we continue to have all necessary power to detain terrorists." The two actions in conjunction represent an unexpected open-mindedness on the part of the president with respect to detention policy. By seeking a broad-focus, "blank-sheet-of-paper" review, asking Mattis to take charge, and inviting Congress to join with them, President Trump acted prudently and, dare I say it, wisely. 

What Secretary Mattis should find and report to our president is that our current detention policies, including the use of Guantánamo, are a failure. They are overly cumbersome and restrictive from a military perspective. Also, they embody elements that violate core elements of U.S. law and human rights and damage our international reputation and our ability to achieve our foreign policy objectives. A well-crafted detention policy would seek to eliminate these costs and thus strengthen our nation’s defenses. 

Such a policy should meet the following criteria:

First, it would permit the military, working in concert with other agencies and departments, to swiftly transport prisoners to the optimum locations for interrogation and detention — including, if need be, the United States. Because of our overly restrictive or unclear detention policies, tactical operations are being hamstrung, U.S. forces are suspected of making kill over capture decisions in anti-terrorism operations, and naval ships at sea are being used as interrogation sites, a wasteful use of valuable assets.

Second, while the U.S. has the legal authority to hold prisoners taken in the war against terrorism indefinitely, we should avoid buying into the endless headache of the wholesale or indefinite detention business. The only prisoners we should hold are those who have harmed or who directly threaten the United States. They should be tried and put away; the rest should be transferred to our allies. Detention policy should ensure that a pre-built off-ramp exists for every person brought into the system.

Third, detention operations should be conducted in strict conformity with U.S. and international law, including the Geneva Conventions. Not only is this mandated, it would reduce the legal friction that has proven so counterproductive in the fight against terrorism.

Fourth, the system to try terrorism defendants should yield swift justice consonant with the best traditions of the American legal system. Since 9/11, Article III courts have fairly and efficiently tried and convicted more than 620 individuals on terrorism-related charges. By contrast, despite more than 15 years of effort and three iterations, the military commission system has failed to try a single one of the detainees credibly alleged to have participated in the 9/11 mass murders. President Trump himself has noted the staggering inefficiency of the military commission system.

Fifth, U.S. detention operations should be harmonized with those of our allies, for the simple reason that this war is not a solo fight. One of the unfortunate mistakes made by the Bush administration in its response to 9/11 was to attempt to create a different legal architecture than the one that the international community had crafted so painstakingly out of the horrors of World War II. Our allies could not and will not condone torture, abandon due process protections as the military commission system has done, or support Guantánamo’s system of indefinite detention. 

And, sixth, our detention system should be cost-efficient. Whatever Guantánamo is, it is not that. The cost of holding a single Guantánamo detainee is about 139 times more expensive than housing a prisoner in the escape-proof Supermax prisons in the continental United States. Moreover, the military assigns 2,000 soldiers to guard the 41 Guantánamo prisoners, an unconscionably wasteful use of scarce personnel. The ratio of Guantánamo guards to prisoners is more than 48 to 1, while in the federal prison system it is about five prisoners to one guard.   

The application of these criteria to our detention policies would lead to numerous long-needed reforms, all of which would help ensure that these policies support our warfighting objectives. These reforms would necessarily include the closure of Guantánamo and the elimination of the military commission system.

Mattis, who prizes boldness and whose command history shows no tendency for reinforcing failure, will likely recommend a break with the dead-end Bush and Obama detention policies. When he does, will President Trump and Congress abandon campaign rhetoric and act in the national interest? My hope is that they will.