On the 20th anniversary of the arrival of the first detainees at the U.S. prison in Cuba, Penn’s Center for Ethics and the Rule of Law (CERL) issued a package of recommendations focused on shuttering the Guantánamo Bay (GTMO) detention facility.
CERL, a partner of the Annenberg Public Policy Center (APPC), released a set of actionable steps that Congress and the Biden administration can take to not only close GTMO but also 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.
The recommendations and a forthcoming report from which they are drawn were developed by a CERL working group co-chaired by Claire Finkelstein, faculty director of CERL, a professor of criminal and national security law at Penn, and an APPC distinguished research fellow, and Harvey Rishikof, former convening authority for the military commissions at Guantánamo and a visiting professor of national security law at Temple University.
“The arrival of the first detainees to Guantánamo on January 11, 2002, ushered in one of the darkest and most ignominious chapters in U.S. history,” Finkelstein said. “Yet 20 years and roughly eight billion dollars later, we still have not achieved justice for the victims of 9/11, and we have tarnished the moral authority of the nation and distorted the rule of law. The CERL Working Group draws together some of the greatest experts in national security law and the law of armed conflict in the country. Its nuanced recommendations provide a path by which the Biden administration can realize its stated goal of closing the Guantánamo Bay prison and restoring integrity to U.S. detainee treatment and policy.”
How to close Guantánamo
In its statement, the working group offers 13 recommendations for the executive branch and Congress to close the Guantánamo Bay detention facility. Among those steps, the group says:
- President Biden should rescind an executive order signed by President Trump in 2018 to keep Guantánamo open, make closing the facility a national priority, and direct the Department of Defense to close the military commissions and facility no later than Sept. 30, 2023, the end of the 2022-23 fiscal year.
- The Defense Department should resolve as many cases as possible by guilty plea and, in order to do so, should eliminate the death penalty from the range of possible sentences for defendants willing to plead guilty.
- To give the president the broadest range of options, Congress should remove the prohibition on using federal funds to transfer detainees to other U.S. jurisdictions from Guantánamo Bay from future National Defense Authorization Acts, starting with the 2023 fiscal year.
- Congress should “mandate that any evidence derived from illegal activity, including torture, cruel, inhuman, or degrading treatment, or the use of interrogation practices prohibited by U.S. law be excluded from all stages of military tribunal proceedings and for all purposes, except as evidence of the illegal activity.”
“Many good and dedicated legal officers have tried to make GTMO work,” Rishikof said. “After 20 years, it is time to realize a new approach needs to be taken. Hopefully our recommendations will begin this policy conversation.”
The working group, assembled in June 2021, developed its ideas in part at a November 2021 conference on the future of Guantánamo Bay that was jointly sponsored by CERL and APPC.
Read the full set of 13 recommendations and the working group statement on the CERL website.
