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Will Obama’s Guantánamo Plan Close the Prison or Just Relocate It to a New ZIP Code?

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President Obama has submitted a plan to Congress to close Guantánamo Bay military prison. Despite Obama’s pledge to close the facility as one of his first acts after taking office in 2008, there are still 91 prisoners there, 35 of whom have been cleared for release. Republicans in Congress have repeatedly obstructed his attempts to close the prison. Obama wants to transfer all detainees to their home countries or to U.S. military or civilian prisons. We speak to Baher Azmy, legal director of the Center for Constitutional Rights, and Ken Gude, a senior fellow with the National Security Team at the Center for American Progress.

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: President Obama has submitted a plan to Congress to close the Guantánamo Bay military prison. Despite Obama’s pledge to close the facility as one of his first acts after taking office in 2009, there are still 91 prisoners there, 35 of whom have been cleared for release. Republicans in Congress have repeatedly obstructed the president’s attempt to close the prison. On Tuesday, Obama announced plans to transfer all detainees to their home countries or to U.S. military or civilian prisons. During his address, the president explained why the prison must be shuttered.

PRESIDENT BARACK OBAMA: For many years, it’s been clear that the detention facility at Guantánamo Bay does not advance our national security. It undermines it. This is not just my opinion. This is the opinion of experts. This is the opinion of many in our military. It’s counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. … Keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law.

AMY GOODMAN: Congress remains strongly opposed to Guantánamo prisoners being moved to U.S. soil and is expected to block Obama’s plan. President Obama said he hoped his plan would receive a fair hearing.

PRESIDENT BARACK OBAMA: In Congress, I recognize, in part because of some of the fears of the public that have been fanned oftentimes by misinformation, there continues to be a fair amount of opposition to closing Guantánamo. If it were easy, it would have happened years ago, as I wanted, as I have been working to try to get done. But there remains bipartisan support for closing it. And given the stakes involved for our security, this plan deserves a fair hearing.

AMY GOODMAN: To find out more about the significance of the move, we’re joined now by two guests. Baher Azmy is the legal director of the Center for Constitutional Rights, which has been representing Guantánamo prisoners since 2002. Ken Gude is a senior fellow with the National Security Team at the Center for American Progress.

Ken, let’s begin with you. Can you respond to President Obama’s proposal yesterday?

KEN GUDE: Well, first, I want to thank you very much for being on your program, Amy. I’ve long been an admirer, and it’s a great honor to be here.

I think President Obama’s plan that he put out represents the best and most secure way to close Guantánamo. It’s not particularly new from what he’s been trying to do over the course of the last seven years, but I am hopeful that, with about 11 months to go in his administration, this will be a renewed push to finally get the prison closed.

Now, I think we have to be realistic about the prospects of at least one element of his plan that he put forward yesterday, which was to try and bring some detainees into the United States to stand trial in federal court or to be held as law of war detainees. Congress is just not going to change the law to allow that to happen, especially given the amount of opposition that this Congress is throwing at the president on every issue. So, the notion that there are going to be detainees here in the United States from Guantánamo in anything like the near term is just not going to happen. So I’m hopeful that the Obama administration has some alternative plans for what to do with detainees that they were intending to bring to the United States, so that they can actually close the prison under his administration.

JUAN GONZÁLEZ: And, Baher Azmy of the Center for Constitutional Rights, you’ve been engaged with the administration now for years on this issue. What’s your reaction to the president’s latest plan?

BAHER AZMY: Well, we appreciate the vigor with which he—with which he delivered his condemnation about Guantánamo, but ultimately think the plan is both too late and too little. It is too late, because some of the most obvious features of the plan—transferring cleared detainees—could have been accomplished long ago. There are—the 35 detainees, including a number of our clients, have been cleared for release, some of whom—since 2009, yet they have languished.

And it’s too little, because in addition to the sort of political reality that Ken identified, the plan embraces a broken military commission system as a way to try—charge and try the 9/11 conspirators, as they are called, and simply transfers Guantánamo to U.S. soil. And the president’s condemnation of Guantánamo as being illegitimate doesn’t have to do with its physical space, it has to do with its legal and political space and its embrace of indefinite detention, which he would simply import into the United States and make it a more normalized feature of our legal landscape to be abused by future presidents.

JUAN GONZÁLEZ: Well, what about those detainees who have been cleared? What has been the difficulty in getting them—getting them moved out and into either home countries or other countries?

BAHER AZMY: So, Congress has placed some barriers to transfer, which the administration cites repeatedly. But ultimately it’s been a lack of political will, because he has always had the authority he currently has to either repatriate individuals to home countries or resettle them in third countries. Since—between 2010 until about 2014, there was a blanket ban on repatriating anyone to Yemen—and the majority of prisoners were Yemeni—regardless of individual circumstances or family circumstances. And that was self-imposed. So, we’re really pleased to hear that he’s going to expedite a process of getting cleared detainees out, the 35 out immediately, but he has to speed up clearing others and consider a fair trial system in Article III courts.

AMY GOODMAN: Ken Gude, who are these prisoners? This morning on the networks, you see they’re talking about bringing terrorists to U.S. soil. More than a hundred, one network said, had gone back to fight when they were released. Who are the people who are held at Guantánamo?

KEN GUDE: Well, now, it is a much different group than the original about 700 that were brought to Guantánamo by the Bush administration. The Obama administration inherited about 240 detainees; now they’re down to just 91. There is a core group that are facing military commissions charges, only seven that are facing military commissions charges—the 9/11 co-conspirators and two others. There’s another group of detainees that the Obama administration does not want to release. And then there’s a larger group that is going to be transferred out of the base to their either home countries or third countries. Now, some of these guys are bad guys. I don’t think there’s any—any question about that. But a lot of them have been in Guantánamo for 15 years, and it’s high past time that they’re transferred or resettled to third countries. And I’m hopeful that the Obama administration can get that done at least before they leave office.

Now, I think it’s important for your viewers to realize that there is legitimate criticism of what—the pace that the Pentagon has been working through some of these cases to get them transferred and resettled. But it isn’t just a case of the Obama administration being slow or the Obama administration not being committed to closing Guantánamo. This is a difficult challenge, because a lot of these detainees simply can’t be sent back to their native countries, for a variety of reasons, some of which is related to international law prohibitions on sending individuals back to a country in which they face the likelihood of torture. So it is a process to try and find countries to accept them and resettle them. And it is a long bureaucratic process, one the Obama administration has not managed particularly well. But hopefully, in this last 11 months, the president and Secretary of Defense Carter will be able to light a fire under the people in the Pentagon who are responsible for doing this, and we can get it done.

AMY GOODMAN: Baher, the prisoners that you have represented, I mean, how they end up at Guantánamo—for example, those that were given money to bring in people?

BAHER AZMY: Yeah, well, as Ken identifies, the overwhelming majority of prisoners brought to Guantánamo Bay were simply in the wrong place at the wrong time, fleeing the American-led bombing in Afghanistan, picked up in Pakistan through Pakistani government raids, sold to the Americans for bounties. A study done in 2006 revealed that even under the government’s own evidence, taking that as true, only 8 percent were Guantánamo—were al-Qaeda members or fighters of al-Qaeda. Now, some of the individuals currently detained there, like our client Ghaleb al-Bihani, was in the so-called too-dangerous-to-release category for a long time, even though the worst that could be said about him is that he was an assistant cook to a group that was affiliated with the Taliban, but that no longer exists.

AMY GOODMAN: We’re going to break and then come back to this discussion. We’re talking with Baher Azmy—he is legal director at Center for Constitutional Rights—and with Ken Gude, who’s with the Center for American Progress. This is Democracy Now! Back in a minute.


AMY GOODMAN: Roger Waters performing “We Shall Overcome,” accompanied by high school cellist Alexander Rohatyn, here in the Democracy Now! studio. This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González, as we talk about President Obama’s announcement yesterday about his plans to close Guantánamo.

JUAN GONZÁLEZ: Well, I want to ask about some of the comments made about Guantánamo during this election season. Speaking Tuesday before the Nevada caucus, Republican presidential contender and Florida Senator Marco Rubio criticized Obama’s plan and repeated what he’s said on the campaign trail about Guantánamo.

SEN. MARCO RUBIO: Not only are we not going to close Guantánamo, when I’m president, if we capture a terrorist alive, they’re not getting a court hearing in Manhattan, they’re not going to be sent to Nevada. They’re going to Guantánamo, and we’re going to find out everything they know.

JUAN GONZÁLEZ: Rubio speaking Tuesday. At a GOP debate earlier this month, Rubio said he would put more people in Guantánamo.

SEN. MARCO RUBIO: Here’s the bigger part—problem with all this: We’re not interrogating anybody right now. Guantánamo is being emptied by this president. We should be putting people into Guantánamo, not emptying it out. And we shouldn’t be releasing these killers, who are rejoining the battlefield against the United States.

JUAN GONZÁLEZ: Meanwhile, speaking Tuesday, Republican presidential front-runner Donald Trump vowed to load up Guantánamo with, quote, “some bad dudes.”

DONALD TRUMP: This morning I watched President Obama talking about Gitmo, right? Guantánamo Bay, which, by the way—which, by the way, we are keeping open, which we are keeping open. And we’re going to load it up with some bad dudes, believe me. We’re going to load it up.

JUAN GONZÁLEZ: So, I’d like to ask Baher Azmy, what do you think of these—the way the debate has gone in the Republican—among the Republican candidates about Guantánamo?

BAHER AZMY: Well, I think they’re—it’s sort of the craven grandstanding that we’ve seen with a lot of issues from the Republican Party, including, you know, deportation of 11 million immigrants or the exclusion of Muslims. It’s all of a piece. And Donald Trump, also in embracing waterboarding, has basically admitted that he—made an admission of war crimes that he would commit.

AMY GOODMAN: He said he would bring back waterboarding and bring back a hell of a lot worse than waterboarding.

BAHER AZMY: That’s right, which is a war crime. And so, he might need to get legal counsel, in addition to political counsel, to advise him about that. And, you know, it’s important to remember, as Obama first said, there was a political consensus around when Obama was elected, including from President Bush and John McCain, that the facility should be closed. And Obama, of course, is facing unreasonable obstruction and this really ugly political environment.

AMY GOODMAN: Ken Gude, I wanted to ask you about this letter that was signed by 40 sheriffs in Colorado who wrote to the White House to oppose any plan to move the detainees from Guantánamo to prisons in Colorado. I think there’s some speculation that most of the prisons used would be in Colorado.

KEN GUDE: Yeah, well, I think one thing that those sheriffs probably aren’t aware of is that there’s more than a dozen very high-profile international terrorists already in Colorado prisons, some of the most dangerous terrorists that the United States has ever captured—Ramzi Yousef, the man who was responsible for the first World Trade Center bombing attempt in 1993; one former Guantánamo detainee, Ahmed Ghailani, who was convicted in a New York courtroom of his role in the 1998 East Africa embassy bombings; four of Ghailani’s co-conspirators in that attack; Zacarias Moussaoui, who was captured before 9/11 and was—at the time, at least—thought to be the 20th hijacker; Richard Reid, who was—tried to blow up an inbound airliner into the United States with a bomb in his shoes. These guys are already in prisons in Colorado, or at least in one prison in Colorado, the penitentiary at Florence.

And so, the notion that bringing Guantánamo detainees into the United States and locating them in either maximum-security U.S. prisons or inside secure military bases is somehow a threat to the American people just doesn’t hold water. And it’s not—it’s not something that I’ve ever understood, and nobody who is a critic of this has ever actually explained why it is dangerous to have dangerous people in prison, because if that’s true, we’ve got a real problem, because there’s a lot of dangerous people in prison.

JUAN GONZÁLEZ: Well, Ken, so the bottom line is that you—your sense is that no matter what the president said this week, that at the end of this year we’re still going to have prisoners in Guantánamo because of the continued obstruction of Congress or refusal of Congress to change the law.

KEN GUDE: Well, I don’t think that’s necessarily true. What I think is definitely true is Congress isn’t going to change the law, and the likelihood of anybody coming to the United States is extremely low. But that doesn’t mean that Guantánamo has to stay open, because I do think that there are other options than this preferred plan, than what the president has laid out for closing Guantánamo. And that is, using more of the process of trying to find other countries to take some of these detainees, either in resettlement or trying for third country prosecutions or looking at some of the detainees that were actually captured in connection with the Afghan War, which, as was said earlier, was certainly not the majority of the detainees, but there are some detainees that were captured in connection with that conflict. There were probably about a dozen that were connected—captured trying to flee the Tora Bora situation, and there were probably another 10 or so that are at Guantánamo there who were actually enemy fighters in that conflict. It’s possible that those detainees could be sent back to Afghanistan in a similar process to what the United States did when it turned over the Bagram detention facility to Afghan control. So what I’m saying is that going into the United States, detainees are probably not going there because of the legal and political restrictions right now, but that doesn’t mean that we have to give up. There are other options out there.

AMY GOODMAN: Finally, military tribunals, in the few—in the minute we have left. You mentioned military tribunals, but what is your problem with them?

BAHER AZMY: They are a second-class system of justice that has largely been created in a preordained way to secure convictions. And some proof of their—so that’s why they’re unjust. They’re also unworkable insofar as they’ve been in existence for—since the Bush administration in multiple forms, and because they’re so novel and because they’re kind of made up as they go along, are not a valid system of justice. And the system is toppling sort of year by year as courts are reviewing kind of non-international law charges that they’re trying to bring. And as the president said, it’s been 15 years, and there hasn’t been any trial of—

AMY GOODMAN: The president criticized them—


AMY GOODMAN: —but also said they would continue.

BAHER AZMY: That’s right. That’s right. And he should just more fully embrace fair Article III trials.

AMY GOODMAN: Well, we’re going to leave it there, and we thank you so much for being with us, Baher Azmy of the Center for Constitutional Rights and Ken Gude, senior fellow at the Center for American Progress.

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