Video: Senate Judiciary Committee Hearing Powerfully Endorses Closure of Guantánamo, But Republicans Still Mired in “War on Terror” Hysteria

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Last Tuesday (Dec. 7), the Senate Judiciary Committee held a powerful hearing, “Closing Guantánamo: Ending 20 Years of Injustice,” which presented an unerring case for the prison at Guantánamo Bay to be closed. The committee’s chair, Sen. Dick Durbin, the Senate Majority Whip, and the second most influential Democrat in Congress, is a longtime opponent of the existence of Guantánamo, and has been doing all he can to ensure its closure since Joe Biden became president in January.

in April, Sen. Durbin was the lead signatory of a letter to President Biden urging him to close the prison, which was also signed by 23 other Democratic Senators (a House version, in August, was signed by 75 Democratic members of the House of Representatives). The letters were particularly significant because the lawmakers recognized that holding prisoners indefinitely without charge or trial is unacceptable, and urged the Biden administration to release everyone still held who has not been charged (27 of the remaining 39 prisoners), with plea deals to be negotiated for the prisoners charged with crimes, to bring to an end the irredeemably broken military commission system in which they are currently trapped.

The lawmakers also called for a senior White House official to be appointed to be accountable for the prison’s closure, and for the role of the Special Envoy for Guantánamo Closure at the State Department, responsible for prisoner releases and post-release monitoring, to be revived, and they also urged the Justice Department to abandon its long-held position of resisting every legal challenge submitted by the prisoners, even in cases where the administration itself has endorsed their release. As the Senators explained, “If the Justice Department were not to oppose habeas petitions in appropriate cases, those detainees could be transferred more easily pursuant to court orders.”

In July, Sen. Durbin followed up on this latter point, writing to Attorney General Merrick Garland, urging him to bring to an end the Justice Department’s persistent efforts “to rationalize indefinite detention at Guantánamo,” and last week he delivered a speech on the Senate floor, in which he continued to urge the prison’s closure, also introducing an amendment to the annual National Defense Authorization Act (NDAA) that would “put this dark chapter behind us once and for all,”

Tuesday’s hearing of the Senate Judiciary Committee amplified these calls through the testimony of expert witnesses invited to explain why Guantánamo must be closed, and how that can be achieved. The video of the entire hearing is posted below, via YouTube, and I hope you have time to watch it (although you may want to skip through the sections involving Republican Senators and their witnesses).

Worth hearing in full, however, are the witnesses who called for Guantánamo’s closure. The committee heard from Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions since 2015, who spoke with devastating eloquence about how irretrievably broken the military commission trial system is, and Maj. Gen. Michael Lehnert (retired), who, as a Marine commander, set up the first prison at Guantánamo when it opened — Camp X-Ray — and ran it for approximately 100 days before handing it over to the Army. Maj. Gen. Lehnert explained, from first-hand knowledge, how “[t]he vast majority of the 780 men sent to Guantánamo never should have been there,” and how damaging it is that the Bush administration refused to recognize the prisoners’ rights under the Geneva Conventions.

The committee also heard from Colleen Kelly of 9/11 Families for Peaceful Tomorrows, whose brother Bill was killed on September 11, 2001, but who, like many other relatives of those who died on 9/11, laments the brutality and injustice of the US’s response, and how it has failed to deliver any kind of closure for the relatives of the deceased, and Katya Jestin of Jenner & Block, who represents Majid Khan, the former CIA “black site” prisoner, recruited to join Al-Qaeda after the death of his mother, whose contrition and cooperation with the US authorities after his capture in 2003 eventually led to a plea deal in his military commission trial in 2012.

At his recent sentencing, Khan was allowed to read out a devastating statement about his torture (and his contrition), which I posted in two parts here and here, and when it came to his sentencing seven of the eight military jurors were so shocked and appalled at his treatment that they wrote a hand-written letter to the official responsible for the commissions calling for leniency.

There was also Republican involvement in the hearing, but, as I briefly mentioned above, none of it was even remotely helpful. Sen. Chuck Grassley spoke as the ranking Republican on the committee, witnesses were the lawyer Jamil Jaffer and Charles ‘Cully’ Stimson, and the likes of Lindsey Graham and Ted Cruz turned up to rant and rave and to try and intimidate Democratic Senators and their witnesses. It was all empty bluster — but of the kind that has done so much to help to keep Guantánamo open over the years: false claims about the recidivism rate of former prisoners, for example, or, via Sen. Graham, that the inadequate review process at Guantánamo in 2004-05 (the Combatant Status Review Tribunals) was actually credible and trustworthy (it wasn’t, as Lt. Col. Steven Abraham explained in 2008) and established that everyone held was an “enemy combatant,” who could be held until the end of hostilities that show no sign of ever being declared over.

Continued Republican resistance to calls for the closure of Guantánamo was not the only problem, however. Unfortunately, neither the White House nor the Justice Department responded to requests to attend the hearing — and, as Sen. Durbin  pointed out, neither have they even responded to the correspondence that has so publicly been sent to them this year from himself and others, all of which shows, if not contempt for the need for Guantánamo to be closed, a rather wearying indifference to acting on it with either courage or a sense of alacrity.

In addition, all the efforts to secure Congressional support for measures to bring about the closure of Guantánamo fell short of their profoundly laudable and eloquent aims. Sen. Durbin’s amendment wasn’t taken on board, and although the House version of the NDAA had dropped long-standing restrictions, imposed by Republicans since Barack Obama’s presidency — on bringing prisoners to the US mainland for any reason (for urgent medical treatment, for example, or for trials), on building or modifying a prison on the mainland for prisoners, and on transferring prisoners to certain countries — these were all retained in the final version of the bill, agreed between the Senate and the House, just after the Guantánamo committee meeting.

This is enormously frustrating, of course, but movement on Guantánamo has never been easy, and those of us who care about getting Guantánamo closed need to at least take heart that 99 Senators and members of the House of Representatives are on record as having called this year for Guantánamo’s closure, and Sen. Durbin has persistently made a point of stating that he won’t give up on getting the prison closed once and for all.

In conclusion, I’m posting below the eloquent and powerful statement made by Maj. Gen. Michael Lehnert, although I do also recommend the other statements made by witnesses called by the Democrats.

Statement for the Record of Major General Michael R. Lehnert, USMC (Ret.) Before the Senate Judiciary Committee, December 7, 2021
Shutter the Detention Facility at Guantánamo Bay, Cuba

Chairman Durbin, Ranking Member Grassley, Members of the Committee, thank you for the opportunity to appear before you.

The goal of terrorists is to change our behavior and make us live in fear. By that metric they have accomplished their mission.

Each of you recall those terrible days after 9/11. Some of you were here. Others among you wore the uniform of your nation’s military, as I did. All of us felt an incredible responsibility to the American people we’d sworn to protect. Constituents demanded answers and action.

I was a newly promoted Brigadier General assigned to command a force of 8,000 Marines and Sailors at Camp Lejeune, North Carolina when the world changed. As we began to take captives in Afghanistan, the question about what to do with them became imperative. The Bush Administration settled on Guantánamo.

I had previously commanded a force charged with securing 18,000 Cuban and Haitian migrants at Guantánamo. Because of this background, the urgency of the situation, and the Marine Corps’ ability to deploy rapidly, I was chosen to lead a Joint Task Force to build secure facilities to hold the first 100 detainees. We received our deployment order on Friday, January 4, 2002. We were given 96 hours to deploy to Cuba and build the first 100 cells. We did it in 87. My mission to set up GITMO and run it until the Army could take over lasted about 100 days.

The speed of Guantánamo’s creation and the urgency to gain information had bad consequences. The legal ambiguities that make Guantánamo an attractive choice for some policy makers sets up extraordinary challenges for the soldiers, sailors, airmen and Marines who must execute these policies. We do not shed our oath to the Constitution or responsibility to adhere to U.S. laws and international norms when we deploy. The subsequent decision to subject detainees to so-called “enhanced interrogation techniques,” and to avoid application of the Geneva Conventions except when it suited us, cost us international support and aided the cause of our enemies.

Speaking plainly, we are where we are today because of those misguided policy decisions to cast aside our values and the rule of law. I’m not an attorney, but even I know that when you forgo generations of legal thought and precedent, bad things happen.

The vast majority of the 780 men sent to Guantánamo never should have been there. Among the 39 prisoners who remain in Guantánamo, there are some who need to pay the price for their crimes. But what we have now is not justice. There is no justice for the detainees but more importantly the relatives of the victims of 9/11 and of other terror attacks deserve justice and they deserve closure. They aren’t getting it.

Who gains by keeping Guantánamo open? Not America. Those who would do us harm are the ones who gain. They point to the existence of Guantánamo as proof that America is not a nation of laws. They use Guantánamo as a recruiting tool. They do not want us to close Guantánamo. Some of you might be thinking, “My constituents don’t ever ask me about Guantánamo,” and you’d be correct. Most of America has forgotten about Guantánamo. But hear me when I tell you that our enemies have not. Closing Guantánamo responsibly restores the reputation of America, ensures accountability for those who have committed crimes against us, and provides closure for the families of those they have harmed.

The issue isn’t whether we must close Guantánamo, but how? Presidents on both sides of the aisle have said it needs to close. More than 50 retired generals and admirals have said it should be closed, as have our country’s national security officials. Many of you have as well. You are right. So how do we do it? Here are some suggestions.

First, make someone in the White House clearly responsible for closure and give them a finite period of time to make it happen. I was given 96 hours to open it. 96 days to close it seems reasonable. Whoever gets this thankless job needs to have the authority to direct the necessary elements of our government to make it happen.

Second, there also needs to be a senior official at the State Department in charge of negotiating transfers. More than two thirds of the remaining detainees — 27 of them — have not been charged with any crime. These detainees must be transferred either to their country of origin or a willing host nation. Thirteen have already been approved for transfer by our defense and intelligence agencies. Continuing to hold these uncharged detainees costs the U.S. taxpayer $13 million dollars annually per detainee, ties up troops that could be used elsewhere, and makes a mockery of our system of justice. Let’s stop admiring the problem and transfer these detainees out of GITMO without further delay.

For the remaining 12 who have been charged, it is time that we recognize that the commissions have failed. I have little sympathy for these men and a great deal of empathy for their victims. But by any objective standard the military commissions have failed while our federal courts have been remarkably successful holding our enemies responsible and in securing significant sentences for terrorists. The victims of these men deserve justice. They deserve closure. They are not finding it through military commissions even though some very good people have tried to make them work.

At this point, we must bring these cases to a close through negotiated plea agreements if we want to see resolution in our lifetimes. It may require taking the death penalty off the table. If that is the case, so be it. The death penalty serves no useful purpose other than providing martyrs for our enemies. Again, I am not a lawyer but I understand that plea deals could be reached within the commissions themselves or by video in federal court. In those agreements the parties can make arrangements for where convicted defendants will serve out their sentences. This sensible approach will at least bring closure, if not the justice that we could have had if we had taken a different path two decades ago.

Now some are going to worry that detainees who are released might turn around and try to harm us.

The question of risk is real and I acknowledge it. My life as a Marine involved managing risk. But in my view the damage caused by continuing to ignore the rule of law and gifting a recruitment tool to our enemies far outweighs the risk that some of these aging and sickly detainees might one day engage in terrorism. It is hard to overstate how damaging the continued existence of Guantánamo has been to our national security and the fundamental values we stand for as a nation. Who we are cannot be separated from what we do. It is past time to close Guantánamo and reaffirm who we are as a nation.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or you can watch it online here, via the production company Spectacle, for £2.50).

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the struggle for housing justice — and against environmental destruction — continues.

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Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.