The Briefing

The Guantanamo Misfire

Monday, June 10, 2013

Closing Guantanamo is not now and never has been an urgent matter. President Obama was wrong to make a fetish out of this particular detention facility in 2008 — as was his opponent, John McCain. Obama was wrong to stake any part of his presidency on its closure in the first days of his presidency. And he is wrong now to pretend that Guantanamo’s closure would effect any profound change in detention policy.

What is an urgent matter and has been since the dawn of Obama’s presidency is the rationalization of U.S. detention policy. This project overlaps in significant respects with the project of closing Guantanamo. But it is not the same project, and the administration’s confusion of the two has significantly impaired the rationalization project in the name of what amounts to a bumper sticker.

It is important to understand what closing Guantanamo means in the Obama political lexicon. It does not mean ending law of war–based detention. The Obama administration means to continue holding — at a minimum — nearly 50 detainees until the termination of hostilities with al Qaeda and the Taliban. (The actual number is almost certainly higher than that.) Even in the president’s recent speech, in which he promised the end of the war, he didn’t specify a time frame for that. The military will either hold detainees at Guantanamo, or it will hold them somewhere else. So what is at stake with Guantanamo’s closure is not the substance of detention policy, merely its venue.

Indeed, the insistence on closing Guantanamo — and the consequent refusal to bring new detainees there — actually creates an important problem: Where to hold newly captured detainees and where to put certain detainees currently held in Afghanistan as the United States disengages from combat operations in that country.

On the other hand, several of the key steps the Obama administration has taken — and wishes to take — in support of its Guantanamo closure policy constitute important elements of any effort to rationalize U.S. detention policy. And conversely, the steps that Congress has taken to frustrate the Guantanamo closure are profoundly disruptive to that effort.

For example, the administration went through a laudably careful effort to determine which detainees it did and did not wish to continue holding — an effort that included a careful study of possible dispositions for each detainee. It has managed to resettle a significant number of detainees in third countries and to repatriate certain others. It has sought to bring to trial detainees who should, in fact, face trial. Congress, meanwhile, has greatly encumbered transfers from Guantanamo, both transfers out of U.S. custody and transfers to the United States for civilian trial. The result is that the administration is holding a group of people it does not wish to continue to detain and should certainly have the flexibility to get rid of.

This congressional policy has a perverse consequence: Guantanamo has become — even if the administration wanted to use it — an entirely useless facility for new detainees. Detention is a fluid business. Opportunities to transfer detainees arise, and sound policy must allow the military to seize such opportunities when they present themselves. No administration is likely to bring detainees to a facility if Congress makes that facility into a roach motel, where detainees check in but they can’t check out.

There’s an obvious compromise here: Guantanamo should remain the site for long-term law of war detention in overseas counterterrorism operations, but Congress should make it a useful site by removing the restrictions on transfers. This would help solve the problem of future captures and current long-term detainees held elsewhere. It would also give the administration the ability complete the substantive portion of its detention policies. And it would not erode the legal rights of any detainees — who at Guantanamo receive judicial review of their detentions and have access to counsel for that purpose.

I don’t oppose closing Guantanamo, but the administration is very wrong to elevate its closure to some high ambition of U.S. policy. The real debate should be about whom we will detain, under what legal authorities, and subject to what processes. None of this hinges on location. And ironically, by making a fetish of location, the administration — and the president himself — daily erode confidence in their own policies. Obama describes as a disgraceful legacy of the prior administration a detention site that houses people he does not, in fact, mean to set free — at least not any time soon.

Guantanamo still exists because there’s a certain group of people whom the United States cannot bring to trial and whom no president will free. The question of where to hold them is a cosmetic matter of public relations — important only in the diplomatic friction it creates with certain allied governments. The hard issue, and it is very hard, is what to do with this group of people as the United States winds down combat operations in Afghanistan and nears the strategic defeat of al Qaeda. Closing Guantanamo will do nothing to address that question.