The Next Ten Years

Friday, April 6, 2012
Army Sergeant 1st Class Dominic MacDonald
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© Philadelphia Inquirer/Peter Tobia

Ten years have passed since the opening of the U.S. detention facility at Guantánamo Bay, Cuba, and the anniversary was marked with much hand-wringing. There were articles by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site, and tear-stained statements by human rights groups.

In a decade of policy experimentation at Guantánamo, some efforts have succeeded, some have failed tragically, and some are still in process. But far more interesting than the past ten years is what the next ten will look like. And that subject seems oddly absent from the conversation.

Make no mistake: there will be another ten years of Guantánamo. (Even if Guantánamo itself miraculously closed, we would have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against nonstate actors, our forces are likely to capture more of such people, and we will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

America needs principles for Guantánamo’s next decade—principles that might form the basis for a national policy that commands support from a wide swath of our political system. Here are three suggestions.

First, the president must face the fact that the effort to close Guantánamo has failed. It is clear that no conceivably electable presidential administration—including the Obama administration—is going to abandon the military detention of terror suspects. It is also clear that Congress has an irrationally strong preference for carrying out this detention at Guantánamo, that legislators will frustrate any efforts by the administration to create or use alternative sites, and that the executive branch will not exert the political effort necessary to stare Congress down on this point.

Our forces already hold more detainees than they can safely release or put on trial.

This is actually a rational calculation on Obama’s part. The marginal political gain he would net from closing Guantánamo and building some other site for the same purpose—a site that would quickly acquire similar infamy—just isn’t great enough to justify the intense political energy it would require to achieve Guantánamo’s closure. What’s more, much of the president’s political base—not being stupid—has figured out that closure doesn’t mean all that much if detainees are moved rather than freed. So why not stop pretending that Guantánamo’s closure is still meaningfully part of the plan?

Guantánamo is a detention facility, not a lobster trap. The ability to free detainees must be unencumbered.

Second, detention at Guantánamo has become rich with due process, and we should embrace this model for a wider array of long-term counterterrorism detentions. Detainees at Guantánamo have access to habeas corpus. They have access to lawyers. And those who lose their cases have a robust review process that will re-examine their cases regularly. Ironically, while Guantánamo remains controversial, U.S. detainees elsewhere in the world have much less process available to them. Instead of clamoring for a useless closure that isn’t going to happen anyway, we should think about which detainees, including those held in Afghanistan and those we have sometimes held on ships, we might prefer to bring to Guantánamo and hold under its rules. These guidelines have actually served the executive branch well by creating legitimacy and judicial sign-off for detentions that had once been executive-only affairs.

Army Sergeant 1st Class Dominic MacDonald
Army Sergeant 1st Class Dominic MacDonald faces an empty jury box inside the Office of Military Commissions courtroom at Guantánamo. While Guantánamo remains controversial in the United States and abroad, U.S. detainees elsewhere in the world have much less legal process available to them.

Third, non-criminal detention is a fluid business that requires flexibility. Public myths aside, detention at Guantánamo has not usually meant detention forever. Opportunities to press charges against detainees will sometimes arise. Opportunities to transfer them abroad come up more often. We learn about errors, and new information has often triggered releases. Yet just as the administration has avoided acknowledging Guantánamo’s ongoing role, many in Congress from both parties have been in denial about the importance of transfers from the facility. Congress has made transfers terribly difficult and thereby all but guaranteed that the administration will not use the base for future cases. This is wrongheaded. Guantánamo is a detention facility, not a lobster trap, and a detention facility where detentions can’t end helps nobody. The ability to free detainees must be unencumbered for any detention policy to work well.

Put these three principles together and you get something—process-rich, flexible detention at Guantánamo Bay—that looks like a detention policy for the coming decade. Working toward such a policy, not endlessly picking at the scab of the past ten years, should be the focus of the discussion.