This week marks the second anniversary of President Obama’s order to close Guantánamo—and the detention camp remains open with approximately 170 detainees in the facility. Walking the walk is more difficult than talking the talk.
A Democratic-controlled Congress tightened the purse strings to frustrate President Obama’s efforts to close Guantánamo Bay. Federal law now bans using federal funds to build a detainee-holding facility within the United States, and also bans using federal funds to transfer detainees to the United States (even for prosecution in a federal court).
President Obama has long had his eye on a maximum security prison in Illinois as a detainee holding facility. So, what is wrong with bringing detainees to the United States and housing them in maximum security prisons?
Opponents argue that detainees housed in U.S. facilities could be a magnet for suicide bombers; detainees could claim asylum; and courts might release some of them within the United States, or a detainee could escape and terrorize U.S. citizens. There exists a NIMBY problem—“not in my backyard.” After all, nobody wants to live next to terrorists.
However, one important, and oft-overlooked, argument against bringing detainees to the United States rests in the Geneva Conventions. Geneva includes a specific prohibition against housing detainees in penitentiaries. It states: “Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries.” The commentary to that section explains that using penitentiaries to intern prisoners is “prohibited because of the painful psychological impressions which such places might create.” This isn’t surprising. After all, the detainees are not convicted prisoners. Until and unless they are convicted, the Geneva Conventions prohibit treating the detainees like convicts.
The detention camp at Guantánamo Bay is a secure—indeed secluded—facility, which affords detainees a substantial amount of freedom and movement. Detainees typically live in open bays, with about 12 to a bay, and they can leave their housing facility for up to 12 hours a day. Detainees can also enjoy various types of activities to occupy their time and minds: taking classes, learning about computers, participating in sports, gardening, or visiting the library.
Some detainees find Guantánamo prison conditions so favorable that they do not want to leave. When I was a JAG Officer assigned to Guantánamo Bay, one detainee was offered release, and he asked if he could stay. Another asked the Army to move his family to Guantánamo, instead of releasing him (the military said no). When the government persuaded Albania to accept several detainees, they told reporters a few months later that they preferred captivity in Guantánamo Bay to freedom in Albania.
After taking office, President Obama ordered a full inspection of Guantanamo Bay and it passed with flying colors. Inspectors determined that the camp in Guantánamo Bay fully complied with the Geneva Conventions.
It would be hard to argue that detainees would be better off on lock-down in maximum-security prisons than in Guantánamo. In fact, President Obama has steered clear of that argument. Instead, he argues that detainees should be moved to U.S. maximum-security prisons to enhance the United States’ reputation abroad, because Guantánamo has given the United States “a black eye.”
But improving our reputation abroad is not a justification for moving detainees to less favorable conditions, which violate Geneva. So long as President Obama has decided to treat detainees as POWs, he must follow Geneva. He is not allowed to pick and chose which provisions he prefers.
Kyndra Rotunda is an associate professor of military and international law at Chapman University School of Law and executive director of the Military Law and Policy Institute/AMVETS Legal Clinic. A former Army judge advocate general, she was a military commissions prosecutor at Guantanamo Bay and is the “author of Honor Bound: Inside the Guantanamo Trials.”