Sen. Kay Hagan and I were born in Shelby, N.C., a city of about 20,000 people between Charlotte and Asheville. The city got its name from Col. Isaac Shelby, a hero of the Revolutionary War best known for his role in the Battle of Kings Mountain that took place about 15 miles southeast of the city that bears his name.
Hagan moved away from Shelby when she was a child. I left years later after I graduated from law school and joined the Air Force.
I moved to Washington in September 2005 when I was appointed chief prosecutor for the military commissions at Guantanamo Bay, Cuba. I stepped into the role believing the narrative we had been told by senior Bush administration officials: The men at Guantanamo were all the “worst of the worst,” the kind of fanatics who would chew through the hydraulic lines of the aircraft flying them to Cuba just to kill Americans.
For the most part, the narrative was false.
About 80 percent of the 779 men ever held at Guantanamo are no longer there; more than 500 left while President Bush was in office. Half of the 164 detainees still imprisoned were cleared for transfer in January 2010 by representatives of the CIA, FBI, Department of Defense and Department of Justice who unanimously agreed that they posed no imminent threat and the U.S. did not need to keep them.
Nearly four years later, 84 men the government says it has no need to keep remain in custody at an estimated cost of $2.7 million per man per year. If Sen. William Proxmire were still alive and in office, hundreds of millions of dollars wasted on needless imprisonment at Guantanamo would win a Golden Fleece Award.
Since 2004, the Supreme Court has decided three Guantanamo related cases: Rasul, Hamdan and Boumediene. The United States got a black eye in all three. In October 2012, the U.S. Court of Appeals for the District of Columbia Circuit – the court Congress chose to review Guantanamo military commission cases – ruled that providing material support for terrorism was not a valid war crime for conduct that predated the Military Commissions Act of 2006. In the dozen years since President Bush authorized military commissions in November 2001, just seven detainees have been convicted. All seven were convicted of providing material support for terrorism, the offense the Court of Appeals concluded was not a valid war crime, and for two of them it was the sole charge.
There is just not much good that can be said about Guantanamo.
During their campaigns for the White House in 2008, Sens. Barack Obama and John McCain both pledged to close Guantanamo. After Obama won and the GOP adopted its “if he’s for it, we’re against it” strategy, closing Guantanamo became an early casualty. Beginning in 2011, Congress placed statutory obstacles in the way of the president’s efforts to close the facility, leaving some suspended in a Wonderland-like world where being convicted of a war crime can be a ticket home and never being charged can result in confinement for life.
Some members of Congress have taken steps recently to permit President Obama to begin winding down Guantanamo. In June, the Senate Armed Services Committee voted 23 to 3 to report the National Defense Authorization Act for Fiscal Year 2014 to the full Senate for debate and approval. Hagan was one of the 23 committee members who supported the bipartisan bill.
The bill gives the executive branch greater authority to manage the detainees held at Guantanamo. This includes allowing the military to transport detainees in need of urgent medical care to military medical facilities in the U.S. The Secretary of Defense would also receive the authority to bring detainees to the U.S. for trials if he finds it is in the interest of national security and can be done without compromising public safety. These provisions will face sharp opposition, and it will take courage to see them through.
In October 1780, a band of Patriot volunteers commanded by Col. Isaac Shelby and others defeated the British at the Battle of Kings Mountain. The victorious Patriots wanted revenge for atrocities they had suffered and chose 36 men from the hundreds of prisoners they had captured. The British loyalists were given summary trials and all 36 were sentenced to die by hanging. Nine men were strung up in a tree, three at a time, before Shelby stepped up in front of the vengeful mob and ordered the killing to stop.
In 2008, in his argument for closing Guantanamo, McCain said, “Our great power does not mean that we can do whatever we want, whenever we want.” That sentiment – just because we can, does not mean we should – reflects what Shelby must have felt when he stood up in front of his Patriots and said enough is enough.
Given the many false perceptions about Guantanamo and most of the men held there, it will take courage for members of Congress to stand up for the long-overdue provisions that will help bring it to a close. I hope Hagan will be counted among that number. I hope she recalls her Isaac Shelby roots.
Morris Davis is a retired U.S. Air Force colonel. He is an assistant professor at the Howard University School of Law in Washington and a member of Amnesty International USA.
