Over 30 experts propose legal blueprint to close Guantánamo Bay prison

Military, legal, and ethics experts concur on path toward restoring the rule of law post-9/11, Penn Center for Ethics and the Rule of Law report details

PHILADELPHIA (September 12, 2022) – The Center for Ethics and the Rule of Law (CERL), in partnership with the Annenberg Public Policy Center of the University of Pennsylvania, published today a report that includes, among other key takeaways, a 13-point package of recommendations for shuttering the detention facility at Guantánamo Bay (GTMO) U.S. Naval Base, Cuba.

The interdisciplinary working group that penned the report—comprising over 30 national security and counterterrorism experts, including GTMO prosecutors and defense lawyers, retired military officers, lawyers, former Department of Justice officials, psychologists, psychiatrists, academics, ethicists, and experts in the law of war—assembled in 2021 to consider the complex legal and policy challenges posed by continuing operation of the detention facility, developing their ideas in part at a November 2021 conference held against the backdrop of the U.S. withdrawal from Afghanistan.

Co-chairs Claire O. Finkelstein, a professor of national security law and the faculty director of CERL, and Harvey Rishikof, former convening authority for the commissions and a visiting professor of national security law at Temple University, led efforts to distill the diverse analysis of individual contributors into a consensus product that is comprehensive in scope and nonpartisan in nature.

“I am honored to have worked with this group of highly distinguished national security experts on this question of major importance to the country,” said Prof. Finkelstein. “Our report is the first major effort since the U.S. withdrawal from Afghanistan to address the ongoing national failure of the military commission system as well as the rule of law implications of indefinite detention for those outside that system. We hope it will assist the Biden administration and members of Congress as they grapple with how to reach closure on U.S. involvement in the war on terror.”

The group’s 13 recommendations were pre-released in Jan. 2022 on the 20th anniversary of the arrival of the first detainees to the U.S. prison in Cuba, offering a set of actionable steps that Congress and the Biden administration can take to not only close GTMO but also to repair the damage that continued operation of the facility has done to the real and perceived commitment of the United States to rule of law values.

“Given the diversity of opinions represented by the group, it was an achievement to reach consensus on the 13 recommendations,” said Rishikof. “The knotty legal and policy issues raised by the Guantánamo military commissions will be the subject of study for law reviews, dissertations, and reports for decades to come. It was our intention to provide a path forward so that we can resolve the ‘GTMO Conundrum’ and provide justice and closure for the families who lost so many loved ones.”

Highlights

The report, “Beyond Guantánamo: Restoring the Rule of Law to the Law of War,” presents a path toward restoring the rule of law that advances U.S. national security goals in the wake of the twenty-year war on terror. Among the group’s findings are:

• In addition to the high financial cost to U.S. taxpayers—over $540 million each year—the continued operation of the GTMO prison facility degrades U.S. national security and lowers its stature as a global leader on matters relating to the law of armed conflict.
• The withdrawal of U.S. troops from Afghanistan in the summer of 2021 raises legitimate questions about the president’s authority to continue the indefinite detention of uncharged detainees.
• The history of treatment of detainees, coupled with over-classification in the military commission process, have irretrievably damaged the rule of law in GTMO and denied the victims of 9/11 and their families, as well as the detainees, the justice to which they are entitled.
• The military commissions are incapable of producing impartial verdicts, and the commission system should be disbanded. Remaining cases can be processed in federal court or by the courts-martial system.
• Congress needs to lift the ban on using federal funds to transfer detainees.
• The Biden administration should take immediate steps to close the Guantánamo prison within the next 12 months.

About CERL

The Center for Ethics and the Rule of Law (CERL), affiliated with the Annenberg Public Policy Center at Penn, is a non-partisan interdisciplinary institute dedicated to preserving and promoting ethics and the rule of law in national security, warfare, and democratic governance. CERL draws from the study of law, philosophy, and ethics to answer the difficult questions that arise in domestic and transnational crises and conflicts.

Follow on Twitter: @PennCERL

About APPC

The Annenberg Public Policy Center (APPC) was established in 1993 to educate the public and policy makers about communication’s role in advancing public understanding of political, health, and science issues at the local, state, and federal levels. Its director, Kathleen Hall Jamieson, co-founded FactCheck.org at APPC with journalist Brooks Jackson in 2003.

Follow on Twitter: @APPCPenn