Penn Carey Law professor co-leads report on Guantánamo Bay closure, prompting Congressional meetings

Researchers, led in part by a Penn professor, published a legal blueprint to close the Guantánamo Bay prison in Cuba.

On Sept. 12, Penn's Center for Ethics and the Rule of Law, in partnership with the Annenberg Public Policy Center of the University of Pennsylvania, released "Beyond Guantánamo: Restoring the Rule of Law to the Law of War," a 13-point legal blueprint. Penn Carey Law School's Algernon Biddle Professor of Law and Professor of Philosophy Claire Finkelstein was involved in creating the blueprint. 

The group of contributors, made up of over 30 national security and counterterrorism experts, was led by Finkelstein and Harvey Rishikof — the former director of military commissions and convening authority at the U.S. Department of Defense. 

Finkelstein, the founder and academic director of CERL, started the center in 2012 to establish a community at Penn dedicated to promoting the rule of law in modern governance. Since its founding, CERL has established a wide network of expertise and a robust summer internship program for undergraduate and graduate students interested in rule of law issues of national security and transnational conflict. 

Before the Senate Judiciary Committee held hearings on the topic of Guantánamo last year, CERL released the 13 recommendations that would later be expanded upon in the 200-page report, according to Finkelstein.

She said that one of the recommendations suggested that the Biden administration reopen the office in the State Department that is responsible for the transfers of Guantánamo detainees. Since the recommendations were released, the Biden administration has reopened the office. 

Since the release of the report, Finkelstein and Rishikof have met with staff members from the House of Representatives and the Senate Judiciary Committee to share their findings. Finkelstein said that the co-conveners are eager to speak with members of the Biden administration — adding that the president has "very clearly signaled that he would like to close Guantánamo," and this report serves as a resource for the administration. 

Finkelstein began meeting with contributors for this report in April 2021, inviting Rishikof as a co-convener. The goal of the report was to represent all sides of the political spectrum with a common goal to close Guantánamo.

Finkelstein said that she spent much of the editing process maneuvering disagreements between contributors about Guantánamo and the war on terror. For example, she said contributors had varying opinions about more than half of Guantánamo detainees who haven’t been charged.

Finkelstein argues that Americans, across political and social stances, support the closing of Guantánamo. Colleen Kelly, the co-founder of Peaceful Tomorrows, an organization dedicated to pursuing justice for 9/11 victims, testified on the side of closing Guantánamo. 

"People think we’re not being fair to the victims [of 9/11], and we’re not giving the families the justice they deserve if we close Guantánamo, but that’s exactly the opposite," Finkelstein said. "The families feel that the commissions system at Guantánamo has been precisely the wrong way to get justice for their loved ones."

While some contributors to the report don’t feel that Guantánamo should be closed, Finkelstein said they all agree that the prison — which costs the U.S. Department of Defense $540 million a year — is a failure.

Finkelstein suggests that the biggest interference in closing Guantánamo is the 2011 National Defense Authorization Act prohibition on using federal funds to transfer Guantánamo detainees into the federal court system — which Biden renewed this year. Finkelstein added that the potential financial barrier is an illegitimate reason to keep Guantánamo open, urging the Biden administration to recognize that its operation poses a continuing threat to national security. 

"Both al Qaeda and ISIS have used the torture program and the continuing detention in Guantanamo … to recruit members," Finkelstein said. "[Guantánamo] is a recruiting tool for terrorist organizations."

In addition to threatening national security, Finkelstein said that the existence of Guantánamo has damaged the United States' international standing.

"To deny all rights to those who have been captured in war, to torture them, to hold them indefinitely without charges … to not allow them to testify in court to tell about their experiences, to deny them due process … all of that does not make us stronger," Finkelstein said. "It makes us weaker."