A Memo to Sens. Graham and Ayotte

Benjamin Wittes
Friday, March 8, 2013, 8:19 AM
Over at Politico, Ginger Gibson is reporting that:

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Over at Politico, Ginger Gibson is reporting that:
Sens. Lindsey Graham (R-S.C.) and Kelly Ayotte (R-N.H.) criticized the Obama administration on Thursday over reports that an al-Qaeda leader had been brought to New York. According to The New York Times, Osama bin Laden’s son-in-law Sulaiman Abu Ghaith was captured and will be in a New York court on Friday. Graham, who supports using Gitmo as a detention center for terrorists, accused the administration of avoiding taking the detainee to Guantanamo Bay at the cost of potential intelligence about future attacks. “To bring this person to New York City, if that's what happened, without letting Congress know is a very bad precedent to set,” Graham said. “The Congress has tried to tell the administration that when it comes to people like this we want them to go to Gitmo to be held for interrogation purposes.”
I've got news for the good senators: As long as it's impossible ever to get anyone out of Guantanamo, neither this nor any other administration is going to bring anyone there. The administration has a stupid and self-defeating attitude towards Guantanamo---based on the fiction that the place is closing: a policy of never bringing new detainees there. But there's an antecedent pathology that renders the administration's silliness somewhat moot: Under current congressional enactments, it would be crazy to bring anyone there, even if one were committed to the site as a valuable place for long-term detention. Imagine, for a moment, that the administration did bring Sulaiman Abu Ghaith to Gitmo for interrogation. What then? The law would preclude his being tried in federal court, because it would be unlawful to move him to the United States. As Bobby noted yesterday, moreover, it is entirely unclear that he could be tried for conspiracy in a military commission---and, at a minimum, the administration would be dealing with the non-trivial startup costs of that system. In other words, taking someone to Guantanamo means taking options off the table. As long as Guantanamo is a Roach Motel, the administration isn't likely to check in any new roaches. So here's a memo to Senators Graham and Ayotte: If you want interrogation at Guantanamo to be a useful option for captures like Abu Ghaith, start by getting Congress's own house in order.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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