Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
In his State of the Union address, President Obama will undoubtedly address issues of terrorism, including the new threats posed by ISIS and Al Qaida and the recent attacks in Paris. Much has changed since his remarks at NDU in May 2013 when he announced his understandable but unrealistic desire to declare the conflict with Al Qaida to be over and to repeal the 2001 AUMF. Given recent press reports of his plan to try to close Guantanamo before the end of his Presidency, and the introduction of legislation by Congressional Republicans to prevent him from doing so, it seems likely that the President will also say something about Guantanamo. In my view, that would be appropriate. But he should be careful about what he says. As I have said repeatedly on this blog, if he really wants to close Guantanamo, he needs to stop politicizing the issue (even if Republicans do so). Towards that end, the President should stop saying (as he said in his NDU remarks) that Guantanamo is “a facility that should have never been opened” and insist that closing it is a “moral” issue. This is a needless slap at the Bush Administration and an effort by the Obama Administration to impugn the character of its predecessor. Such statements tend only to rile up Republicans in Congress, whose support Obama needs if he actually wants to close Guantanamo. It seems politically tone-deaf for the White House to ask a Republican Congress to help clean up a Republican Administration’s “mistake.” And it is especially inappropriate to condemn prior policy – a policy that Obama has seemed perfectly satisfied to defend in court – as immoral when he has not put forward an alternative for detention of al Qaida and Taliban detainees that would suddenly restore American values. The President would do better to acknowledge that there were legitimate national security reasons to open a detention facility at Guantanamo in 2002 but to state that the facility has now outlived its original purposes. As I have explained before, even if aspects of the decision to open Guantanamo can be criticized, there was indisputably an urgent need to detain and question members of the Taliban and Al Qaida captured in Afghanistan and elsewhere in some secure location, and US military commanders did not want to hold them in Afghanistan (and the American people would not have been anxious to have them moved to the United States so soon after 9/11). Thirteen years later, after all detainees have been comprehensively questioned about their ties to terrorism, and roughly 650 detainees have been transferred out of Guantanamo, the remaining detainees can be transferred into maximum security detention facilities in the United States, either for prosecution or continued detention. Acknowledging that there were reasons to open Guantanamo in 2002 is not an endorsement of every aspect of the Guantanamo detention program. Obviously, much has been mishandled, either intentionally (like detainee abuse) or unintentionally (like the orange jump suits). Many of those initially detained in Afghanistan (like the Uighurs) should not have been sent to Guantanamo in the first place. Many of the individuals sent to Guantanamo should have been released sooner, and many officials in the Bush Administration worked hard to speed up the processes for screening and transfer or release. The reason to close Guantanamo now is not so much a “moral” issue (although indefinite detention without trial certainly raises moral questions) but a national security issue. Guantanamo serves as a recruiting tool for terrorists and continues to damage (whether deservedly or not) America’s global reputation (whether tattered or not) for commitment to rule of law. It also complicates our diplomacy with allies, including with regard to counter-terrorism cooperation. President Bush himself long ago recognized that Guantanamo had become “a propaganda tool for our enemies and a distraction for our allies.” (Decision Points, p. 180). Many of the remaining detainees at Guantanamo will need to continue to be detained for a long time so that they can be prosecuted for their crimes -- like KSM -- or for the foreseeable future (if they continue to pose a threat). But they can be detained equally securely inside the United States while removing Guantanamo as a national security irritant. Despite fearmongering by some in Congress, detainees held at military detention facilities in the United States are not likely to escape into our communities. We already detain many terrorists, including al Qaida operatives involved in major plots, in American prison facilities. Certain other detainees who have been approved for release by intelligence and military experts can continue to be transferred to other countries, with appropriate assurances that they will be monitored and will not return to the fight. Obama Administration officials have alternatively tried to justify closure of Guantanamo on the grounds that it is expensive. While this is true (and it is a good reason to close it), it is an obvious and unnecessary sop to fiscally conservative Republicans. Obama would do better not to feature this argument. In the State of the Union, it would be wiser for the President to stop -- once and for all -- trying to score political points with Guantanamo and simply acknowledge the truth: Whatever mistakes were made in the initial creation and operation of Guantanamo, there were also understandable and legitimate military reasons to open Guantanamo in 2002 as a detention and interrogation facility after the 9/11 attacks, but the facility has outlived its comparative usefulness and its costs to U.S. national security now outweigh its remaining benefits.
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.
The Justice Department is pursuing its first ever war crimes prosecution and is targeting Russians for their actions in Ukraine. But it’s not quite the case some might have expected.
The six Nevadans were each charged with one count of offering false instrument for filing or record and one count of forgery.
Join Lawfare for a live discussion of the trials of Donald Trump.