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I welcomed the President’s order at the time, but I commented on NPR and elsewhere that he would have a difficult time deciding what to do with the detainees, how to prosecute those who had committed crimes, and what legal framework to apply. Together with Matt Waxman and others in the Bush Administration, I had worked hard to try to close Guantanamo, and I knew it would be more difficult than Obama Administration officials anticipated.
As I explained last year on this blog, the Bush Administration made many mistakes in managing Guantanamo, but this does not mean that the problem of what to do with thousands of suspected members of the Taliban and al Qaida captured or turned over to coalition forces in Afghanistan in 2001 and 2002 was actually an easy one, or an issue that the Obama Administration could easily have handled by holding and prosecuting the detainees under federal criminal law (which did not actually apply extraterritorially to the activities of many of the detainees in Afghanistan). For Obama Administration officials (and some human rights groups) to claim otherwise -- and to assert that the Guantanamo problem was caused solely by policy failures of the prior Administration -- is both disingenuous and unhelpful to the President's goal of closing the facility.
After losing political enthusiasm for Guantanamo closure between 2010 and 2013, President Obama has now reinvigorated his Administration’s efforts to shutter the detention facility, which is also an initiative I support. He has appointed two very competent envoys at the State Department and Defense Department -- Cliff Sloan and Paul Lewis -- and they are going about their work in a disciplined and non-partisan way. They have already successfully transferred several detainees to Algeria, Saudi Arabia, and Sudan, and the last Uighurs to Slovakia.
Republican members of Congress should remember that President Bush also wanted to close Guantanamo and should support the envoys’ work. Many of the detainees remaining in Guantanamo may still be dangerous and hostile to the United States, but this does not mean that the right answer is for Congress to keep them locked up in Guantanamo forever and to throw away the key. Every day, dangerous individuals are released from federal and state prisons in the United States, and government must simply try its best to ensure that they will not commit new offenses. Although some Guantanamo detainees must be prosecuted for their crimes, it is not sustainable, or consistent with American values, for the United States to continue to hold more than a hundred detainees in Guantanamo for another ten, twenty, or fifty years under the laws of war. Rather than continue to ignore (or worse, exacerbate) the problem, Congress needs to act responsibly and work with the Obama Administration to close Guantanamo, even if it means transferring some potentially dangerous detainees to other countries (with appropriate safeguards to limit the threat they may pose) and transferring others to the United States for trial or continued detention in secure facilities.