Durbin Chastises Biden Administration for Snubbing His Guantanamo Closure Hearing

I live-blogged on Twitter the Senate Judiciary Committee’s hearing on closing Guantanamo today. The biggest takeaway was what didn’t happen: the Biden administration didn’t send any government witness, in keeping with its low-key (and not particularly active) approach to its nominal policy goal of closing the prison.

Although the revitalized Periodic Review Board has been steadily adding names to the list of those recommended for transfer, Biden has not revived a position of State Department envoy to negotiate transfer arrangements. To date, the administration has transferred just one detainee. The current breakdown is 39 detainees remaining, of whom 12 have been charged or convicted before the tribunals system, 13 have been recommended for transfer with security assurances, and 14 are on the untriable/unreleasable list. (Check out the recently overhauled New York Times Gitmo Docket tracker.)

Anyway, there wasn’t enough concrete news at the hearing for a newspaper story, but here is the summary converted from a roughly 30-post Twitter thread:

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At Senate Judiciary Committee oversight hearing on Guantanamo, Senator Durbin expresses disappointment that the Biden White House and the Garland Justice Department haven’t responded to his letters on the topic & the Biden administration declined to send a witness to the hearing.

Senator Grassley, the top Rep, also flags that no one from DOJ/State/IC came to defend the Biden admin’s plan to close Gitmo and says he’s not sure there is any. Having a policy goal without a plan “invites disaster” he says, comparing it to the messy withdrawal from Afghanistan.

Senator Feinstein, recalling the CIA torture report she oversaw as former chair of SSCI, says the isolation of Guantanamo invites abuse and makes no sense to her to house prisoners there.

Brig. Gen. John Baker, the retiring chief defense counsel in the military commissions system, calls the tribunals a failure that need to be brought to an end as quickly as possible through negotiations. Too late to make them work, too many errors already baked in.

Colleen Kelly, whose brother Bill was killed on 9/11 and who cofounded a 9/11 families group, expresses frustration with failure of attempted military commissions prosecution. Asks for plea agreement that would provide answers & closure even tho it would mean no death sentences.

Cully Stimson, who was top DOD detainee policy/operations official in 2nd term of Bush admin, says early abuses at Guantanamo were wrong but treatment has been good since 2nd term of Bush admin. Suggests Obama/Dems lacked courage of convictions when failed to close it in 2009-10.

Maj. Gen. Michael Lehnert (ret.), the first Gitmo prison commander, says Americans have forgotten Gitmo but enemies still use it as recruiting tool. Says uncharged detainees should be transferred – saying risk of recidivism reduced bc they are aging and sickly – and /1

and the cases of the 12 charged ones should be brought to an end through negotiated plea deals, perhaps in civilian court via video conference hearings, even though it would mean taking death penalty off the table. Death just functions to make them martyrs anyway, he said. /2

Jamil Jaffer, a conservative national security lawyer, makes case for keeping Gitmo. War on terror not over. Releasing detainees risks they could become leaders in a foreign terrorist group and energize it. Bringing them to a prison on US soil risks giving them more legal rights.

Katya Jestin, the volunteer lawyer for Majid Khan, says commissions just exist to keep CIA torture in the shadows and continuing to litigate in the tribunals system is a road to nowhere. Says the detainees still uncharged, 20+ years after 9/11, should be transferred.

Under questioning from Durbin, Generals Baker and Lehnert reiterate their point of view status quo — keeping commissions going, keeping Gitmo open — is worse than the risk of changing course.

Under questioning from Durbin, Katya Jestin describes the military jury’s handwritten note urging clemency for her client Majid Khan and expressing disgust/shame over his torture by the US government. Story by @carolrosenberg

Under questioning from Grassley, Jamil Jaffer discusses the risk that released Guantanamo detainees might rejoin a terrorist group. Says “the terrorist threat today is worse specifically because we withdrew from Afghanistan”

Under questioning from Grassley, Stimson explains why many remaining detainees cannot be charged with a crime under civilian court standards. Jaffer warns the SCt might rule they have extra rights on domestic soil & there’s a low but not zero chance they could be ordered freed.

Feinstein doesn’t ask questions but says it costs taxpayers $13 million per year for each of the 39 remaining detainees to house them at Gitmo. Calls an isolated “‘criminal justice system’ in quotes” wrong and unAmerican and says she hopes the votes are finally there to end it.

Graham says it’s “nuts” to talk about releasing people when the Taliban control Afghanistan again. The war continues. Torture is wrong but indefinite law-of-war detention is lawful. “It’s absurd to criminalize a war.” Spars w/ Baker over whether detainees received fair process.

Graham says the need is to keep indefinite law of war detention somewhere. It doesn’t have to be at Gitmo. He doesn’t care where they are housed, it could be in Illinois. (That’s a reference to Obama’s plan to bring them to a prison in Thompson, Ill., which Congress blocked.)

Senator Whitehouse thanks Durbin for keeping pressure on the Department of Justice. Says the original sin of detainee problems was “inappropriate” post-9/11 DOJ Office of Legal Counsel memos by DOJ (Yoo-Bybee era) that the Bush DOJ itself disavowed once they became public.

Under questioning by Cornyn, Jaffer says despite the “precipitous withdrawal” from Afghanistan, the larger war on terror continues and therefore the legal ability to detain captured enemies indefinitely and without trial continues.

Stimson says that moving detainees to a different prison but continuing to hold them in indefinite detention is just changing Gitmo’s zip code. Supports transfers with adequate security assurances but says some have been inadequate. (Doesn’t specify examples of what he means.)

Colleen Kelly says her family has different opinions about Guantanamo but everyone agrees the attempt to prosecute 9/11 defendants has gone on too long and the victims and country needs closure.

Under questioning by Tillis, Stimson says closing Gitmo “can be done.” Logistics would be easy with just one planeload. Legal (bringing to domestic soil prison) raises a lot of open questions. Political is the toughest. Congress has imposed impediments and would have to help.

Jaffer acknowledges that Guantanamo has imposed reputational harm on the United States but says what about the reputational harm of Biden withdrawing from the Afghanistan War and abandoning allies there.

Under questioning by Hirono, Jestin says plea agreements can be reached quickly if there is a will. In the Khan case, they negotiated with an experienced DOJ prosecutor who had been detailed to DOD. Recommends getting DOJ prosecutors more involved.

Under q by Hawley re legal rights detainees might get in a US soil prison, Jaffer says some evidence against them may not be admissible (chain of custody) & Stimson says they could file tort lawsuits against their captors (tho also says Congress could enact a law to block that)

Blackburn says nothing has changed to suggest the detainees are any less dangerous than when captured (she doesn’t address the PRB process). With Jaffer, talks about how the end of the Afghanistan War and the Taliban return to power means greater terrorism danger.

Under questioning by Klobuchar, General Baker says commissions have been delayed by D.I.D. — death penalty issues, intrusions by government into atty-client confidentiality, and discovery (classified evidence). Says negotiated plea agreements can solve.

Under questioning by Klobuchar, General Lehnert says Biden needs to put someone in charge of closing Gitmo in the White House or NSC with the authority to drive the bureaucracy to get transfers done, and federal courts using videoconference hearings should handle plea agreements.

Ted Cruz says Obama and now Biden just want to free terrorists.

After Cruz & Jaffer talk about how 1/3 of ex-Gitmo detainees return to terrorism, Durbin says those #s are misleading–>overwhelmingly Bush-era transfers before 2009 standards. Of those transferred after 09, just 5 percent (10 guys, 2 of whom dead) are “confirmed” as re-engaging.

Durbin also points out it was Trump who made a deal with the Taliban promising that the US would withdraw from Afghanistan by the summer of 2021. Thanks the witnesses and reaffirms his support for closing Guantanamo. Gavels the hearing closed.

P.S. Here’s the ODNI data on re-engagement by ex-detainees, showing tilt to the pre-2009 transfers. (Bush admin made bulk repatriations to allies like Saudi Arabia w/out the individualized vetting Obama admin put in place. Also perhaps some aged out as they got older.)

Originally tweeted by Charlie Savage (@charlie_savage) on December 7, 2021.

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