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Can We Have a Discussion about Releasing the Majority of the Guantánamo Prisoners?

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With the prisonwide hunger strike at Guantánamo now entering its third month, conditions at the prison have come under sustained scrutiny for the first time in many years, and media outlets, both domestic and international, have learned, or have been reminded, that 166 men remain at the prison.

They remain imprisoned despite Barack Obama’s promise to close Guantánamo, which he made when he first took office in January 2009, and despite the fact that more than half of them — 86 in total — were cleared for release from the prison in 2009 by an interagency Guantánamo Review Task Force, established by the president to decide who should be freed and who should continue to be held.

For those of us who understand that Guantánamo will poison America’s moral standing as long as it remains open, the awakening or reawakening of interest in the prison — and the prisoners — is progress. There is still some way to go before Obama or lawmakers understand that they need to release prisoners or face the very real prospect that all the prisoners still held at Guantánamo will remain there until they die, even though the overwhelming majority have never been charged with any crime and never will be.

Two-thirds of the 86 prisoners cleared for release are Yemenis, but after a Nigerian man, recruited in Yemen, tried and failed to blow up a plane bound for the United States on Christmas Day 2009 with a bomb in his underwear, Obama imposed a blanket ban on releasing any of the cleared Yemenis, which ban stands to this day. His reluctance was then reinforced and amplified by lawmakers, who passed legislation insisting that no prisoners should be released to any country they regarded as dangerous, or where there had been a claim that even a single released prisoner had been a recidivist.

Alleged incidents of recidivism — returning to the battlefield — have become a rallying cry for lawmakers (most of them Republicans) since Obama took office, as a result of successive claims primarily originating in the Pentagon. Most of the claims, which allege that a significant proportion of released prisoners had become recidivists, have never been adequately backed up by any information that can be independently verified as evidence

The perceived threat from Yemen — and the dubious claims about recidivism — need to be challenged if a case is to be made for releasing prisoners from Guantánamo, but mainstream commentators have persistently shied away from confronting the president or Congress on these obstacles to the closure of Guantánamo.

So it was somewhat heartening last week to see that Rosa Brooks, law professor and former policy advisor to the Obama administration, wrote an article for Foreign Policy entitled, “Let Them Go” — posted elsewhere as “Why not let Guantánamo prisoners go?” — that directly confronted these questions.

After noting, “The fear that detainees at Guantánamo or Afghanistan might ‘return to the battlefield’ if released remains an ongoing feature of debates about U.S. detention policy,” Brooks conceded that this concern “isn’t entirely frivolous,” because some former prisoners “have taken up arms against the United States after gaining their freedom.” She then directly confronted the refusal to move beyond those concerns by stating, “Here’s my heretical thought: So what? Or, more precisely: Isn’t it time to recognize that the dangers associated with releasing detainees might be outweighed by the dangers of continuing to hold them?”

That is a hugely important point, reinforced by Brooks when she writes that “we should weigh the dangers of releasing detainees against the long-term threat posed by our own detention policies. There’s ample reason to believe that U.S. detention policies have incited anti-American sentiment around the globe.”

To be fair to the Obama administration, that is the position that the president and his advisors have always maintained, but Brooks makes the crucial connection between that position and specific actions needed to make it mean anything at all beyond empty posturing — the need to release prisoners and the need to challenge the claims about recidivism that have been so damaging.

She writes that “fears about detainee recidivism are overblown,” because “most previously released Guantánamo detainees have not ‘returned to the battlefield’ — and of those who have, few appear to have posed a direct or severe threat to the United States.”

Brooks is to be congratulated for puncturing the hysteria about recidivism that has been manufactured by those who want to keep Guantánamo open for their own malignant reasons. Her comments should also be regarded as extending to Obama’s unacceptable, fear-filled ban that was based on the actions of one man, a failed plane bomber. He thereby consigned the imprisoned Yemenis to indefinite detention on the basis of their nationality alone, even though their release was recommended by his own task force.

Further demonstrating the sincerity of her intentions, Brooks notes ruefully that the government “seems generally averse to engaging in the serious cost-benefit analysis of our detention policies I have suggested,” but points out that “there is another potential basis for reconsidering our collective fear that released detainees will return to the battlefield: We have the ability to significantly mitigate the risk posed by released detainees. We can, for instance, closely monitor released detainees, using a wide range of surveillance technologies.”

Rather facetiously, it seems to me, she concludes by saying that all the remaining prisoners should be freed, each given $10,000, and thanked by John Brennan

“for everything they’ve done to help the United States eliminate al-Qaida and its associates.”

That, however, fails to detract from the overall power of her message — that recidivism claims have been monstrously overblown, and that acknowledging the damage that Guantánamo does to America’s safety and reputation means nothing if prisoners are not actually being released.

It is also worth noting that the spur for her article seems to have been the latest news from Afghanistan, where, on March 25, the United States formally transferred control of Afghanistan’s Parwan Detention Facility (formerly known as Bagram) to the government of Afghanistan.

As she explains, “The transfer of the facility, which holds some 4,000 people, had been delayed due to U.S. fears that Afghan authorities would release many of the detainees — who would end up ‘returning to the battlefield.’ But as a U.S. official told the New York Times, there’s ‘a shift that’s going on in how the U.S. is looking at what’s important…. We have to look at the larger picture: What’s the U.S. strategic interest here?’”

In Afghanistan, therefore, the United States has had to “weigh the potential costs associated with releasing Afghan prisoners against the potential costs of not releasing them,” and has largely concluded that the former is less costly, although there are a few exceptions. Brooks writes that “the fear of recidivism hasn’t fully receded,” because the United States “continues to detain several dozen Afghan nationals deemed to pose ‘enduring security threats,’ along with a similar number of non-Afghan detainees.”

What will happen to these men is unknown. The planned end of America’s combat presence in Afghanistan by December 2014 may be presumed to mean that some further explanation will be required at that point. At that date, the majority of the Guantánamo prisoners will also expect to be included in the discussions, unless, before then, the government concludes that, at Guantánamo as at Parwan, the cost of not releasing prisoners is more damaging than the cost of releasing them.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.