Closing GTMO: “Why wasn’t there a clearly delineated strategy?”

It’s not even the most glaring error in Dina Temple-Raston’s review of Charlie’s Savage’s Power Wars, but this passage sure does stand out:

While the issue of closing the Guantanamo facility comes up throughout the book, Savage doesn’t shed light on one of the great mysteries surrounding the effort to shutter the prison: how it was that the Obama administration didn’t take office with a plan. Obama had made closing Guantanamo a signature issue in the campaign, and obviously it was something he would have to address early on. Why wasn’t there a clearly delineated strategy?

Temple-Raston appears to have forgotten something (although Savage does discuss it, and the attempt to implement it, at length). And then, of course, there was this (the first major, critical piece of the “strategy”). As well as the remarkable, continuing efforts by the State Department — largely successful — to implement Section 5 of the Executive Order, right through to the present day.

As I’ve discussed here previously, although the President’s “clearly delineated strategy” has largely been realized, despite the repeated efforts of Congress to stymie it — the United States has virtually ended the practice of longterm military detention, and within the next few weeks only 90 or so detainees will remain at GTMO — it is true that the GTMO Executive Order did not expressly explicate the final piece of the puzzle: what was to be done with the last, discrete set of detainees (as it turns out, four dozen or so) who could not be transferred or tried but who were being lawfully detained.

But that’s not for lack of giving thought to the problem. That final piece of the “legacy” problem was always a dilemma that did not admit of any obvious solutions — something of which the Administration was well-aware at the outset of the President’s tenure.  Accordingly, Section 3 of the Executive Order provided that the “strategy,” after closure of the GTMO facility, was to transfer those few detainees “to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United State,” i.e., to custody in the United States—an option that Congress subsequently, and indefensibly, has prohibited.

Like other critics of the President’s GTMO strategy, Temple-Raston herself does not offer any solutions — or even any suggestions — about how the President should deal with the final few dozen detainees. That’s no surprise, because there is no easy, or obvious, solution.

[NOTE: In fairness to Charlie Savage, he discusses all of this, at great length, in the book under review. He “doesn’t shed light” on the mystery Temple-Raston identifies because (as he explains and I note above) it wasn’t a mystery. But Savage does shed plenty of light on the many efforts — most successful, some frustrated — that have been made to implement the “clearly delineated strategy” the President announced on his third day in office.]

P.S.  Temple-Raston also writes that “By Savage’s account, the decisions the Obama administration has made with respect to national security policy all stem from a single event: the failed attempt by al-Qaeda’s arm in Yemen to bring down a Northwest Airlines flight over Detroit on Christmas Day in 2009.”  That is not, of course, Savage’s account.  Savage does try to show how the Christmas Day attempted bombing affected perspectives within the Executive branch, and how it led to at least one changed policy (the moratorium on GTMO transfers to Yemen).  But he doesn’t come anywhere close to arguing that “the decisions the Obama administration has made with respect to national security policy all stem” from that attack–which would quite an absurd proposition to defend. 

Filed under:
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).