Published by The Lawfare Institute
in Cooperation With
"And yes, when I am President of the United States, if there is some place in this country where radical jihadists are planning to attack the United States, we will go after them wherever they are, and if we capture them alive, they are going to Guantanamo."
So says Marco Rubio in one of my favorite inversions of the current presidential campaign. It used to be, way back in the mists of time, that presidential candidates promised they would "close Guantanamo" and some of us tried to remind the public that it wouldn't be that easy. Now candidates are promising—almost as unrealistically—to expand Guantanamo. Here's why that won't happen either.
No president is going to bring new detainees to Guantanamo as long as Congress makes the base a lobster trap to which it's easy to get detainees there but from which it's onerously difficult to remove them. Once a detainee shows up at Guantanamo, the government cannot lawfully transfer him to the United States and it can only transfer him anywhere else subject to a rigorous certification process. Not even a president philosophically committed to the base will want to tie his own hands so tightly. What's more, as long as the number of captured jihadists remains small, the criminal justice system has proven a reliable mechanism for long-term incapacitation and has a legitimacy that Guantanamo can never achieve. It has also proven remarkably effective on the intelligence front.
Guantanamo is a great symbol—of excess to the Left and of toughness to the Right—but it's just a facility, one that's both hard to close and hard to use.