Edited by Sam Thielman
ON TUESDAY, AS GUANTANAMO BAY neared its 20th anniversary, the Senate judiciary committee held its first hearing about the infamy of Guantanamo since 2015. What’s the point of covering it?
No Senate hearing is going to release anyone from Guantanamo. No expert testimony about exorbitant costs per prisoner or procedural absurdities can win an argument that is inescapably political. There is no technocratic way out of Guantanamo—Barack Obama sure created an elaborate technocratic apparatus for a closure that never was—only a technocratic way of thinning Guantanamo’s detainee ranks. (I don’t say this to diminish the efforts of any individual person who does whatever they must to get out of Guantanamo.)
The inevitable response to any technocratic contention for closing Guantanamo is, as Ted Cruz shouted on Tuesday, that Obama and Joe Biden are committed to “freeing terrorists from American detention.” In response, the Senate Democrats who advocate closure mumble through questions about securing plea bargains and so forth, as they did on Tuesday. Dick Durbin, who is challenging the Senate to close Guantanamo, actually’d the Republicans with statistics from the Office of the Director of National Intelligence showing that only 10 Guantanamo veterans engaged in post-detention violence, as if his interlocutors, who misleadingly claim the figure is far higher, give a shit.
This is the political deadlock around Guantanamo Bay, even before we get to military and CIA obstructionism. The right knows it has the field to itself. Maintaining the Guantanamo status quo is all the right requires to achieve political victory. That’s because the Democrats, from Biden on down, are unprepared to make anything resembling a first-principle argument. And that is the point of covering a Guantanamo Bay hearing in the Senate judiciary committee: to document what that looks like in 2021.
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THE WITNESS LIST TESTIFIED TO the triumph of the right on Guantanamo. Not a single Biden administration official was willing to outline the administration’s Guantanamo policy. Their absence sent an unmistakable signal that Durbin is on his own. Biden is preoccupied with his phone call to Vladimir Putin to avert a Russian invasion of Ukraine; and then with his weird Summit of Bourgeois Democracies later this week. Closing Guantanamo simply does not appear on his list of priorities. When asked what Biden should be doing to close Guantanamo, one of the witnesses on Tuesday, the former detention task force commander Michael Lehnert, archly replied, “Put someone in charge of doing this.”
The witnesses made some valuable points. Marine Brig. Gen. John Baker, the chief of defense counsel at Guantanamo, confirmed that the FBI and CIA worked “hand in fist” to torture detainees, contrary to a false narrative the FBI spent nearly two decades cultivating. Lehnert and Katya Jestin, one of Majid Khan’s lawyers, discussed an option familiar to Justice Department prosecutors: securing plea deals to resolve the remaining charged military-tribunal cases, “if there’s a will to do it,” in Jestin’s words. There was an enormous gap in urgency to close Guantanamo between those three witnesses and the Democratic Senators who invited their testimony. For the portions of the hearing I saw—I’ve been having persistent internet trouble and the technician can’t get out here until later in the week—Baker, more than anyone who held office, was more irritated by the antics of Lindsay Graham.
Graham supplied the old-vintage opposition to Guantanamo. This is a War on Terror; it is ongoing; as long as it is ongoing, the Law of War provides appropriate authorities to detention; and there is no further discussion. Graham, who has reversed his position on Guantanamo with remarkable shamelessness, asserted that it’s a false choice to charge detainees with a crime or release them. In a maneuver that might interest Samuel Moyn, despite its being 11 years old, Graham and John Cornyn lamented that the Democratic aversion to Guantanamo has incentivized killing suspected terrorists instead of detaining them. Cully Stimson, who was the Pentagon official in charge of detention policy during George W. Bush’s second term, testified that, in Afghanistan, “the enemy is on the march.” Indefinite detention at Guantanamo remains necessary because the Taliban won, or something. It’s not meant to be something you think too hard about; it’s meant to deter you from thinking about it at all.
The younger, nationalist generation of GOP senators might have contempt for the politics of senators like Graham. But they didn’t sound meaningfully distinct from Graham’s era of Guantanamo politics. Josh Hawley, who saluted the Capitol insurrection and yet remains a voting member of the Senate, suggested with theatrical fear that federal courts will grant detainees tried on U.S. soil “all kinds of new legal rights and outcomes.” Marsha Blackburn, who had a long Islamophobic career in Tennessee politics before coming to the water’s edge of support for overturning the 2020 election, simply said that the 39 detainees remaining in Guantanamo were dangerous. Several senators suggested that the five former detainees now working as senior officials in the Taliban government are a humiliation that Democratic weakness inflicted on the national honor. Ted Cruz, who, again, yelled his remarks, suggested that closing Guantanamo is part of an active choice made by Obama and Biden to permit terrorists to wreak havoc on America.
If any Senate Democrat had any meaningful answer to this, Optimum did not permit me to stream it. Instead, I heard Democratic lamentation of the dysfunction of the military commissions and the stain of Guantanamo on the national reputation. Sheldon Whitehouse of Rhode Island damned the 2002-3 John Yoo torture memos as “in some respect the original sin” of Guantanamo. None wanted to commit themselves to trials that carry with them the theoretical prospect of a detainee’s vindication, which has to be present if a trial is worth anything. None rejected Guantanamo on the principle that states of exception are ink blots that, once spilled, black out more and more of the law for more and more people.
There is no way to close the detention center at Guantanamo without answering and defeating the politics of the War on Terror. The old men inside its walls do not threaten an America that has just experienced more death in under two years than in its entire Civil War. The War on Terror, not the men it tortured, threatens the safety of Americans. In a moment of extreme democratic peril, uprooting the apparatus of indefinite detention before an anti-democratic right starts expanding the definition of “terrorist” is urgent. Listen to Marjorie Taylor Greene when she says jailed insurrectionists who have been charged with crimes and have never, say, been taken out of their cells into a boat on the open water and beaten, or threatened with the rape of their mothers, are treated “worse than we treat terrorists at Gitmo.”
Evading the demagoguery when possible, and accommodating it in the hopes of accruing leverage to confront it later—the Military Commissions Act of 2010 was a bipartisan law supported by Obama—has failed. These tendencies protect Democratic politicians and no one else. Their persistence is the most relevant phenomenon on display at Tuesday’s hearing.