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In his NDU speech, President Obama asserted that “there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened.” As has become fairly typical, he thus blamed the Guantanamo conundrum on the prior Administration (for opening Guantanamo in the first place) and on Congress (for preventing his more virtuous Administration from acting to close it). Although I have long supported the closure of Guantanamo, it is unfair to suggest 1) that Congress is wholly responsible for the Obama Administration's failure to close Guantanamo (the White House itself failed to expend political capital on the project), and 2) that there were clear and easy alternatives for the detention of al Qaida and Taliban suspects captured by or turned over to the U.S. military in Afghanistan in 2001. If President Obama wants to close Guantanamo, or reduce the number of individuals held there, he will need bipartisan political support, and trying to pin blame on others is not a productive way to get them to help him solve the problem. President Obama and Administration officials would do better to acknowledge that the detention of terror suspects captured immediately after 9-11 has been a difficult dilemma for two Administrations and that there were no easy answers then, and there are no easy answers now. By claiming that Guantanamo should “never have been opened,” Obama (and other critics of Guantanamo) have suggested or implied that those captured in Afghanistan in 2001-2002 should either have continued to be detained in Afghanistan or else transferred to the territory of the United States to be tried in federal courts. But would either of these have been viable alternatives in 2001-2002? I discuss the alternatives below the break. Recall that at the end of 2001, U.S. military commanders in Afghanistan were clamoring for detained Taliban and al Qaida suspects to be removed from Afghanistan because hostilities were still continuing and there were no secure detention facilities in Afghanistan. To avoid “opening Guantanamo,” would President Obama (or President Gore) have denied the commanders’ request and ordered that the individuals continue to be detained in Afghanistan (where it would have been difficult to question or prosecute them)? Or, if he had agreed to his commanders’ request that the detainees be transferred out of the theater to a place where they could be held securely and questioned, would President Obama have ordered that 775 suspected Al Qaida and the Taliban members be moved into the United States, either to be held at a military facility or a federal prison? The Defense Department would surely have opposed this, but even if they had not, then the President would simply have created a Guantanamo on the U.S. mainland to be subject to the same international criticisms. Critics of Guantanamo have asserted that many of the individuals sent to Guantanamo should never have been detained. It certainly turned out that Vice President Cheney’s oft-ridiculed statement about the “worst of the worst” turned out not to be true (just as John Brennan’s statement that there had been “no civilian casualties” from drone strikes turned out to be hyperbole.) But it is unfair to blame any shortcomings in detainee screenings on political appointees in Washington. The decisions about which detainees would be sent to Guantanamo were made by military officials in Afghanistan, not White House officials, and errors in initial screenings are inevitable in the middle of a conflict. (For example, Bush Administration officials did not “decide” that the very unfortunate Uighurs should be sent to Guantanamo; indeed, starting in 2002/2003, senior Bush Administration officials “decided” that the Uighurs should be released and worked hard for the remainder of the Administration to find countries that would accept them.) In his NDU speech, President Obama also asserted that “the original premise for opening Guantanamo -- that detainees should not be able to challenge their detention -- was found unconstitutional five years ago.” But if President Obama (or Gore) had ordered that al Qaida and Taliban detainees be moved to the United States in 2001/2002, would he immediately have conceded that they should all have the right of habeas corpus, assisted by lawyers, to challenge their detention in federal courts? In the immediate aftermath of the 9-11 attacks, I doubt it. Moreover, recall that a decade later, the Obama Administration has vigorously resisted giving the roughly 1700 detainees it has been holding in Bagram a right to habeas review. And the Obama Administration has done little to implement the President's own Executive Order 13567 of May 2011 requiring that Guantanamo detainees be able to challenge their detention, with the assistance of a Government-provided personal representative. So the President's criticism smacks of the pot calling the kettle black. Although the Obama Administration itself has continued to detain individuals at Guantanamo (and Bagram) as combatants under the laws of war, the Administration officials have suggested that, had President Obama or Gore been in office, they would have held detainees as criminal suspects to be tried in federal courts, not as combatants. But is it really fair or realistic to suggest that individuals captured or detained in Afghanistan in 2001 should or would have been held and prosecuted in federal courts, or else released? Would President Obama or Gore have dispatched 1000 FBI agents (or trained U.S. soldiers) to read detained al Qaida and Taliban suspects their Miranda warnings, to maintain chains of custody for any evidence taken, and to take statements of nearby witnesses in the mountains and valleys of Afghanistan? Although I have supported the trial of the 9-11 planners in federal courts (because they committed federal crimes), is it realistic to suggest that the five Taliban leaders who are currently the subject of negotiations between the United States and the Taliban should also have been held as federal criminal suspects? (In fact, had the Taliban been treated as Prisoners of War, as some have urged although the Obama Administration has not agreed, the Geneva Conventions would have prohibited them to be tried in civilian courts.) In his NDU speech, Obama also suggested that many of the detainees “cannot be prosecuted for example because the evidence against them has been compromised or is inadmissible in a court of law.” Again, this reflects an effort to blame the inherent complexities of prosecuting terror suspects captured on the battlefield or in foreign territories on alleged abuses that occured under the Bush Administration. Yes, some Guantanamo detainees may have been abused or mistreated, but this is not the reason why the vast majority cannot be prosecuted in federal courts or military commissions. In fact, federal criminal laws did not extend to the conduct of many individuals in Afghanistan prior to 9-11, and even if they did, it was virtually impossible to gather admissible evidence in Afghanistan. Is this all intended to be a stalwart defense of the opening of Guantanamo? No, far from it. I worked for twice as many years as anyone in the Obama Administration to “solve” the Guantanamo problem. Guantanamo has indisputably harmed the U.S. reputation around the world as a defender of human rights and rule of law; I therefore understand the anger of human rights groups (as it has undercut their mission), and I fail to understand how staunch defenders of Guantanamo cannot see that Guantanamo also has hurt the United States (even if they believe the benefits outweigh the costs). But I do not think that it is constructive for President Obama to direct his frustration, or for human rights groups to direct their anger, solely at the previous Administration. The blame game only makes finding solutions more difficult. President Obama and human rights groups would do better to acknowledge the unprecedented challenges posed by the capture and detention of terror suspects in Afghanistan in 2001/2002 and try to foster a bipartisan consensus to move forward to solve the Guantanamo problem in the future.
John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.
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