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Closing Guantanamo is way harder than you think
Closing Gitmo is the right decision; now the really hard work starts.
by Matthew Waxman
Today, U.S. President Barack Obama suspended military commissions at the detention facility at Guantánamo Bay, Cuba, and it is widely expected that later this week he will order its closure. That's the right thing to do. So is leaving options open to get it done, as Obama has. He'll need that flexibility. Proclaiming an intention to close Guantánamo is the easy part; actually doing it is another thing. Even harder will be crafting a new detention policy and legal regime for a post-Guantánamo world. And Obama has offered few details of how he will do so.
A few major elements of the new administration's Guantánamo closure plan are already clear. First, as to those detainees who are not considered the most dangerous, it will step up efforts to transfer them to their home countries (or third countries) that can be trusted to deal with any continuing security threat and not mistreat them. The Bush administration has already sent home two thirds of the roughly 800 total Guantánamo detainees this way, and the new administration hopes its diplomatic goodwill will energize this process.
Second, as to those detainees it seeks to keep locked up, the new administration will pore over the evidence to see if criminal prosecutions can be brought effectively in federal court and without risking disclosure of critical intelligence sources and methods.
The big question is what to do with any detainees who are too dangerous or heinous to send home but who cannot be effectively prosecuted. Some expect this category to be very small, maybe even zero. Don't rest assured. The recent withdrawal of charges against the alleged "20th hijacker," Mohamed al-Kahtani, due to his improper treatment at the hands of interrogators is but one example of the difficulties Obama will face. The government has expanded criminal statutes for terrorism since 9/11, and courts have gained experience in handling terrorism trials. But even when the information linking some of the most dangerous suspects to al Qaeda terrorism is reliable, it may not be usable or admissible in court.
If federal prosecutions aren't workable in many cases, and releasing the most dangerous detainees is ruled out, the new administration has several options -- all of them with significant downsides. It could continue to hold current and future detainees in U.S. facilities as "enemy combatants" and let current habeas corpus litigation continue through the courts. Or it could try to prosecute them in reformed military commissions with more lenient evidentiary rules. But both these options look much like the deeply discredited Bush administration policy, only moved inside U.S. borders.
Another option would be to work with Congress on new legislation authorizing "administrative detention" for periods of time of a carefully limited category of detainees, pursuant to strict standards and robust judicial review. Opponents of this approach justifiably worry that such laws would institutionalize detention without trial.
Any closure plan will entail risks and difficult trade-offs. The new administration should not hurry to adopt new detention schemes that lack the established features and protections of American criminal trials. But nor should it rule out legal tools that might durably protect both liberty and security within constitutional and international legal bounds. Either way, the thorny problems of detaining and interrogating terrorism suspects picked up in lawless regions or amid covert intelligence operations will persist long after the 250 remaining Guantánamo cases are resolved. Obama may close Guantánamo, but the complex legal and policy challenges that led to its creation are not going away anytime soon.
Matthew Waxman is associate professor at Columbia Law School, adjunct senior fellow at the Council on Foreign Relations, and member of the Hoover Institution Task Force on National Security and Law. He previously held senior positions at the U.S. State Department, Defense Department, and National Security Council.
MANDEL NGAN-POOLl/Getty Images
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What's the point?
Well, of course there are Gitmo detainee who are (1) very dangerous and (2) cannnot be convicted of a crime.
The suggestion that congress authorize "'administrative detention' for periods of time of a carefully limited category of detainees, pursuant to strict standards and robust judicial review" is utterly empty.
The problem is "thorny" because we obviously have only two options: (1) detain people based only on proof that they are likely to commit violence in the future or (2) release at least some such people. That dilemma brought Gitmo into being. So, we will move the hard core detainees to Levenworth or wherever and hope the international community that was outraged at Gitmo does not figure out we have actually not changed the detainees real situation one bit.
Guantanamo
I suspect Obama has few illusions about the opposition he'll meet in closing GITMO. But we all know that if he doesn't try to close that sink hole of our morality and good name, it won't get closed.
The big problem is to know what to do with the detainees? Surely a nation that put a man on the moon and robots on Mars, and sent satellites winging out through far distant space can solve a problem like that.
If it's left to Congressional Republicans, of course, it won't happen. Pat Roberts has already played the NIMBY card. Kit Bond, went on television to say that Obama should by all means adopt the army manual for interrogations, but should keep a secret set of harsher methods at the ready for real bad guys. He, and too many others, watch too much Fox (24) television. He, and too many GOP folk, are so intent on protecting the Bush record, and their own complicity in it, that they have failed, so far, to grasp the opportunity offered by the electorate and Obama to cleanse their souls, quietly and discreetly. If they have their way, they'll confirm to the world that for America to recover its soul is harder than Obama thinks.
Executive power
The good new for Obama is that, as President, he probably does not need congressional authorization to empty Gitmo of its detainees. I suspect however that the President is worried that, after he orders the release of those who cannot be proved guilty of past wrongdoing, one of them will be involved in attacking a US embassy somewhere, and about 90% of the electorate will be asking why such a dangerous character was released. And again, if he does not release such people, and continues to detain them without trial or due process in some other prison, what is the point of closing Gitmo?
Gitmo got its reputation
Gitmo got its reputation because it was done by the US military who tried to play it by the book -- they allowed Red Cross to visit prisoners and report that they were tortured, etc.
The future problems would be solved if the military simply passed their important detainees to the CIA which could then put them in secret prisons, do whatever it likes to them in secret, and kill them when they're no longer useful. Problem solved, except for the rumors and possibly some evidence might surface.
But we have Gitmo as a publicity problem. And as Malky G and Pilgrim point out, the GOP will end all pretense of bipartisanship if somebody released from Gitmo gets linked to a future terrorist incident.
So I say it's better to go on the offensive. Look over the evidence, and prosecute the ones that works for. Split the remaining population into two troublesome groups -- the ones who shouldn't have been kidnapped in the first place, and the ones where the evidence looks definite but tainted.
The first group, offer them an apology and a reparation, say about $2 million each for every year they were kept. Apologise for the USA and for the former administration that made such a mess of things.
The second group, give each of them a trial and watch the admissible evidence evaporate. We can't use evidence from torture. But we can use evidence that reveals some of our detection methods from 4 years ago. Any terrorist organization that hasn't found out how we were catching them four years ago isn't much of a threat, and our methods have surely changed a lot since then. So the ones that the courts release, we tell them we'll be watching them and we won't do anything to them unless they attack us again.
And present the case to the public. Maybe Obama could have a press conference himself, and get a question from a plant in the media, and answer it. "So, do you think the US president should be allowed to secretly grab anybody he wants, and have them tortured, and keep them as long as he wants without being accountable to anybody? Like, if I thought a reporter was a dangerous terrorist I could do that to any reporter in this room, and be accountable to no one? [grin] I'm touched by your faith in me. Thank you. But what if it was some other president? [Maybe have a picture of Bush displayed prominently, and stare at it for a moment.] Do you want that precedent? Who do you suppose could do more damage to our nation, a terrorist like bin Ladin or a president [glance at Bush's picture] who doesn't care what damage he does while he gets what he wants?"
The terrorists who can't be tried must be released. It's the Bush administration's fault for messing up their evidence.
Take the offensive. Don't wait for them to attack. A terrorist mastermind might likely try to get nukes. A bad US President *has* nukes. There's nothing a terrorist can do that a bad president with no accountability can't do worse.
If the courts say that Bush did things wrong, then Bush did things wrong. The courts are there for that. We're a nation of laws or we aren't. If the terrorists can make us give up our freedoms, then the terrorists have won.
Hard work.
President Bush often talked about hard work and making tough decisions.
He never made the tough decision to close Gitmo, though he talked about it, nor did he do the hard work that such a decision leads to.
The easiest thing to do was to leave it to his successor.
As difficult as it may be, the world needs to see that the US is moving to right it's wrongs. When the next major foreign policy crisis erupts, some credibility, and perhaps moral authority will have been restored. I see this decision being one step in a long and ardous process of reclaiming American values and restoring American political capital in the world.
Reclaiming Ameican Values?
Can President Obama 'reclaim American values' without setting free a substantial portion of the detainees at Gitmo? To my knowledge, the President has not yet remotely made that "tough decision." But no need to argue about it. A year from now the detainees (other than those formally charged with war crimes) will either be free or still 'detained' without due process, and the President's decision will be evident.