The insoluble Guantánamo problem (Part One: The President’s successful transformation of U.S. detention practices . . . and the GTMO exception)

Charlie Savage’s Power Wars (see our ongoing symposium here) tells a very important, and mostly overlooked, story about President’s Obama’s policies and practices with respect to the use of long-term military detention. That narrative, described in dozens of subsections of Savage’s tome, warrants a much more comprehensive treatment than I can give it here. The basic gist, however, is that President Obama has successfully turned U.S. practices sharply away from the use of such long-term preventive detention, and ensured that any few, remaining cases of such detention are implemented consistent with domestic and international law. In particular, the President resolved the following:

— that all detainees must be treated humanely, and would in no circumstances be subjected to torture or to cruel, inhuman or degrading treatment; and that he would take steps, including most importantly his executive order and the release the OLC memos on interrogation, to “ensure that the actions described within them never take place again”;

— that the CIA would no longer operate “black sites” — and, more broadly, that the United States would no longer employ covert or secret long-term detention programs;

— that any persons captured in the United States, beginning with Ali Saleh Kahlah al-Marri, as well as U.S. persons captured overseas, would not be placed in long-term military detention, despite persistent calls from Republican opponents to do just that;

— that individuals captured in the Afghan theater would be held either by the Afghans or at Parwan, where detention operations were subjected to more rigorous and regularized review board processes, and that such U.S.-held detainees would eventually to be turned over the Afghan government (which they were—the U.S. no longer holds detainees in Afghanistan);

— that long-term military detention would not be used with respect to terrorist groups not engaged in an armed conflict with the United States (despite persistent calls from some quarters for such a non-war-based detention system); as I wrote with Mary DeRosa here, “the President has not asserted any constitutional authority to use long-term military detention or lethal force as a means of self-defense against any group that has not previously attempted to attack the United States or U.S. persons”;

— perhaps most importantly, and as John Brennan explained in his Harvard speech in 2011, that the United States would employ a strong presumption that persons detained outside the Afghan theater, even if eligible for military detention, would instead be incapacitated “through prosecution, either in an Article III court or a reformed military commission,” with a decided preference for Article III trials because “[o]ur federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions.” (See also Counterterrorism Adviser Monaco’s more recent remark that “our goal is to get intelligence, and then ultimately to prosecute the individual.”);

and

— that any remaining detainees (including those at GTMO—see below) would be held only if they met the standards for detention in the government’s March 13, 2009 filing, which importantly (and contrary to some D.C. Circuit judges, whose more expansive views the Administration rejected) are limited and informed by the usages and laws of war — adapted, where necessary from more well-established analogues in traditional state-on-state armed conflicts; notably, Savage reports that these standards resulted in the release of many detainees at Parwan being held for intelligence purposes, the transfer of detainees from GTMO who had a good chance of prevailing on habeas under those standards, and the abandonment of the government’s argument that Belkacem Bensayah could be detained on the basis of his “support” for al Qaeda, resulting in a ruling adverse to the government in his habeas case. (The Administration also insisted — again to the consternation of some judges on the D.C. Circuit, who would have lowered the government’s burden — that it should only prevail on habeas if it could demonstrate by a preponderance of the evidence that a detainee was part of enemy forces, and Savage recounts at last one case in which the government refused to defend a habeas case using information derived from abusive treatment.)

Of course, as with respect to any complex governmental practice over the course of two presidential terms, the overall narrative is far more complicated, and less uniform, than my brief summary here could possibly describe. (For example, Savage reports some instances in which the fear of sending detainees to Yemen brought considerable pressure to bear on the standard practices in occasional cases.) Even so, I think it is a fair outline of the detention story described in Power Wars and other public sources.

The President’s policies and practices have thus ensured not only that long-term military detention will be exercised in accord with domestic and international law, but that such detention has, in fact, come to be the rare exception rather than the rule—indeed, virtually a dead letter in U.S. practice.  And as Savage describes in detail, the President has done so over the strong opposition of important national security critics in the Republican Party, especially Senators such as Lindsey Graham and Kit Bond, who have repeatedly clamored, publicly and privately, for much more robust use of military detention, and the long-term denial of access to counsel, in particular.  Moreover, as Savage illustrates in cases ranging from Abdulmutallab to Warsame to Tsarvaev, the transition toward a presumptive use of the law-enforcement model has not come at the expense of our ability to obtain critical intelligence about the enemy — to the contrary, a great deal of the most valuable information has been collected only after detainees were informed of their legal rights. Savage’s book thus tends to confirm what John Brennan said in 2011: “It’s been suggested that getting terrorists to talk can be accomplished simply by withholding Miranda warnings or subjecting prisoners to so-called ‘enhanced interrogation techniques.’ It’s also been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence. A long record of experience, however, proves otherwise.”

There is, of course, one very conspicuous fly in the ointment here, a disturbing rupture in this basic narrative of the President’s successful transformation of U.S. detention practices — namely, the so-called “legacy” detainees at Guantánamo, and the President’s failure to make good on his promise to close the detention facility at GTMO.

Purely in quantitative terms, GTMO was (at least by 2009) a relatively small part of the array of detention issues and policies described above: There were, for example, many more detainees held (and then released) at Parwan, without anywhere near the controversy or attention that has attended GTMO. Yet, for understandable reasons, Guantánamo has come to be viewed as the face or symbol of American detention policies since 9/11 — not least because of the detainee abuse that occurred there, and the fact that it is where the “high-value” former CIA detainees are held; solving the GTMO problem therefore has, quite rightly, taken on an importance — for both the President and for many domestic and international critics and other observers — disproportionate to its relative place in the grand scheme of U.S. detention practices.

Indeed, it’s fair to say that the problems posed by the Guantánamo mess have served as an object lesson that has shaped U.S. practices and policies under President Obama: The detainees at GTMO — including, unfortunately, many of the most dangerous — were placed in indefinite detention there without any prospect of an “end game” for them in this sort of an unconventional armed conflict. And so, not surprisingly, here we are 14 years later with no apparent disposition for the last few dozen of them.

In traditional wars, the prospect of the conflict’s end offers an obvious and mostly satisfactory disposition for war prisoners: e.g., repatriation following surrender or armistice, with little risk of future threat. But this conflict will not end that way, and there is no obvious place to send the final few dozen GTMO detainees, let alone any way to ensure that they will not take up arms again, even after the day that al Qaeda no longer presents a substantial threat and the armed conflict, as such, comes to an end—at which point the AUMF authority to hold the detainees will presumably expire.

This untenable situation has undoubtedly had a great impact on the President’s commitment to minimizing if not preventing the further practice of long-term military detention (see especially subchapter 7.1 of Power Wars). But the problem of GTMO itself, of course, remains as the final piece of the President’s efforts to alter U.S. detention policies — perhaps not the largest piece of the puzzle, but certainly the toughest nut to crack, and the one that has thus far eluded the President.

There are three basic components to Obama’s commitment to “close GTMO”:

First, the President determined that the government “will not send more individuals to the prison at Guantánamo” — and he’s made good on that promise.

Second, the Administration would endeavor to transfer the vast majority of the GTMO detainees to other nations. President Bush, to his credit, had already transferred several hundred such detainees before he left office in 2009. And President Obama has cut the remaining population by more than half: Today only 112 detainees remain at GTMO, and that number may soon decrease to double figures. Of the remaining detainees, about half have already been cleared for transfer to nations overseas, and the Presidential Review Board process is increasing that number, slowly (too slowly) but surely. The Administration is making great efforts to negotiate transfers for most or all of these men before the end of the President’s term and, as I explain below, even the restrictions in the new National Defense Authorization Act (NDAA) might not necessarily prevent that steady progress. The principal obstacle to solving this part of the GTMO problem is the difficulty of finding other nations that are willing to accept the detainees under the conditions required by the statutory restrictions (see below). But the State Department is working diligently to secure such arrangements, and thus the Administration might be able to transfer all or most of this half of the GTMO population before the end of President Obama’s term, particularly if the Secretary of Defense assiduously applies the President’s May 2014 Guidance, which Charlie Savage has recently posted in connection with the publication of Power Wars.

Success on the transfer front would not, however, completely resolve the problem of closing Guantánamo, because it is not a solution for the other (roughly) half of the remaining detainees — probably four or five dozen — who have not been cleared for transfer and who most likely will not be cleared in the next 14 months (and perhaps not as long as the armed conflict with al Qaeda continues). They represent the third and most intractable piece of the President’s directive to “close detention facilities at Guantánamo.”

The President and his advisers have known from the outset that there would be no easy solution to the question of what to do with these last few dozen detainees. It is impossible to try most of them for crimes, either because they did not engage in any conduct that was criminal at the time they were apprehended, or because the government was so focused on interrogation-based military detention in the days after 9/11 that it did not make sufficient efforts to collect and preserve admissible evidence that might support a conviction. Nor was there a significant prospect that these detainees might be repatriated, or safely transferred to another nation, at least so long as the United States remains in a conflict with al Qaeda — not least because other nations would understandably be reluctant to accept these individuals. (That’s why the commonly heard refrain “try or release them” is nothing but an empty catch phrase: Release them to . . . where, exactly?)

Even though the end of military detention for this small final group of individuals is not yet in sight, the President has nonetheless been determined to close the facility at Guantánamo because, as he wrote in his recent veto statement regarding the 2016 NDAA, “the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.”

Unfortunately, however, the final few dozen detainees, along with the detainees already cleared for transfer, remain at GTMO, thanks in large measure to statutory restrictions Congress has enacted over the past several years.

In their post yesterday, Jen and Steve argue that if only the President had refused to “succumb to the politics of the moment” in 2009-2011, and had, in particular, “take[n] a principled stand” by transferring some Uighur detainees to Virginia, and then transferring the 9/11 defendants to the Southern District of New York for trial, such a show of executive resolve might have headed off the statutory restrictions and “Guantánamo might already have been relegated to the history books.”

With all respect, I think their counterfactual history is a case of very wishful thinking. If the President taken such steps — especially the transfer of the 9/11 defendants to New York for trial, over the objections of many of the most important Democratic officials in that state — it not only would have cost the President considerable political capital that he needed for matters such as healthcare reform, two Supreme Court confirmations, and various other domestic agenda items (as Jen and Steve acknowledge); but it also would likely have intensified Congress’s resistance to the prospect of bringing other GTMO detainees to the United States. Jen and Steve imagine that “the politics might have been different” had the President stood his ground. That’s putting it mildly, I think: the politics would immediately have become even more toxic, and Congress would have enacted even more onerous GTMO restrictions, with overwhelming Democratic support.

This doesn’t mean that the President necessarily made the right call on the 9/11 case: A civilian trial in New York was indisputably the right way to go on the merits then (as Savage describes); and the subsequent history of the case has only proved (notwithstanding the commendable, indefatigable efforts of Mark Martins and the defense teams) that the impulse of so many officials to force the Administration to use a military commission was deeply misguided. Jen and Steve are right that there’d almost surely have been a verdict by now from New York, whereas the commission trial is still years away, and any verdict from that proceeding will inevitably be tainted, even if that trial does not deviate significantly from what would have transpired in the SDNY (which remains to be seen). So perhaps the considerable benefits of moving the defendants to New York would have been worth the costs. But even so, those costs would have been substantial, too; and it’s as likely as not that such a move would have made closure of GTMO even more difficult than it is today (if that’s even possible). Or, in any event, it certainly was reasonable for the President to predict such dire consequences at the time.

No matter, though — what’s done is done: Even if Jen and Steve were right about what might have been, the important fact for present purposes is that President now finds himself stymied by the statutory restrictions in his effort to close Guantánamo.

Which brings us to the new 2016 National Defense Authorization Act that the President will sign shortly — the subject of my next post.

Part Two

Part Three

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).