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Whitewashing Guantánamo

President Trump has made no secret of his desire to continue–if not affirmatively re-invigorate–the detention of non-citizen terrorism suspects at Guantánamo. That’s a problematic policy goal, to be sure, but one that’s neither surprising nor, in my view, radically at odds with the realm of legally available options–at least for individuals who are actively participating in the non-international armed conflict between the United States and al Qaeda and its affiliates. But to get there, it now appears that the Trump administration is engaged in a public relations campaign about Guantánamo, pursuant to which (1) nothing went wrong while President Bush was in charge (except for some pesky court orders); (2) everything went wrong on President Obama’s watch; and (3) the military commissions offer flexibility to the government in terrorism prosecutions unavailable in civilian courts. This attempt to rewrite the history of Guantánamo–and to whitewash the Bush administration’s role therein–is cheap, dangerous, and belied by undisputed facts.

Consider three data points: The first is President Trump’s preposterous tweet from last Tuesday, in which he wrote “122 vicious prisoners, released by the Obama Administration from Gitmo, have returned to the battlefield. Just another terrible decision!” As I explained in some detail later on Tuesday, the “122” figure (1) is deeply contested as a factual matter; (2) is without regard to the (far higher) rates of criminal recidivism; and (3) in any event, mis-attributes all 122 of those releases to President Obama, when exactly nine of the 122 were transferred under the 44th President’s watch–in contrast to the first 113, transferred during President Bush’s tenure.

The second data point is Press Secretary Sean Spicer’s remarkably misleading attempt on Wednesday to “clarify” the President’s tweet, in which he suggested that (1) the President “meant in totality, the number that had been released on the battlefield—that have been released from Gitmo since individuals have been released”; (2) “under the Bush administration, most of [the releases] were court-ordered”; and (3) there was a “huge contrast” between the Bush and Obama administration’s approaches to releasing detainees. Let’s take these in order: (1) I call bullshit; (2) as wrong as a purportedly factual statement could possibly be; and (3) yes, in exactly the opposite direction. Leaving aside what the President “meant” (on that one, c’mon…), exactly three detainees were transferred pursuant to court order prior to January 20, 2009 (which isn’t “most” of anything–to say nothing of the 113 released by that date subsequently tagged as recidivists), in contrast to the far more rigorous screening procedures employed by the Obama Administration–which may have a lot to do with the radical difference in recidivism numbers, even on the government’s own terms.

The third data point comes courtesy of Attorney General Jeff Sessions, who gave a radio interview to Hugh Hewitt on Thursday in which, after calling Guantánamo “a very fine place” to hold “these kind of dangerous criminals,” he added the following about the commissions:

We’ve got to get the military on board. By now, we should have worked through all the legal complications that the Obama administration seemed to allow to linger and never get decided, so nothing ever happened. So it is time for us in the months to come to get this thing figured out and start using it in an effective way. In general, I don’t think we’re better off bringing these people to federal court in New York and trying them in federal court where they get discovery rights to find out our intelligence, and get court-appointed lawyers and things of that nature.

So, according to the Attorney General, (1) the delays that have wracked the military commissions are all because of “legal complications that the Obama administration seemed to allow to linger and never get decided” (never mind what happened from November 13, 2001 through January 20, 2009); and the virtues of the commissions include the defendants’ lack of rights to discovery and to court-appointed counsel.

There’s plenty that’s substantively wrong (and disturbing) about the Attorney General’s comparison between civilian courts and military commissions (more than enough to form the basis for an entire future post), but it’s the thread of blaming the Obama administration and whitewashing the Bush administration that seems to run through all three of these data points. President Trump doesn’t appear to think that any detainees who re-engaged were released by the Bush administration; Sean Spicer seems to thinks that those few detainees who were released by the Bush Administration were only released because judges ordered it; and Jeff Sessions sees all of the problems with the military commissions as being the Obama administration’s fault.

At the risk of correcting the record, here are some facts, most certainly not of the alternative variety, that every member of the Trump administration (including President Trump) needs publicly to accept and stop seeking to undermine:

  1. The initial decision to hold non-citizen terrorism suspects at Guantánamo was made by President Bush, at least in part because of advice he received from his lawyers suggesting that holding non-citizen terrorism suspects might allow the government to evade judicial review.
  2. 780 men have been detained at Guantánamo–all of whom were captured and sent there on President Bush’s watch.
  3. 730 detainees have been transferred from Guantánamo–533 under President Bush, and 197 by President Obama. (Nine men died in custody at Guantánamo; 41 remain there today.)
  4. Under the government’s own numbers, 92.6% of those transferred detainees who “re-engaged” were released by President Bush. I know math is hard, but that leaves 7.4% of the identified recidivism cases attributable to the Obama administration (in contrast with criminal recidivism rates that, in some cases, approach 50%).
  5. Exactly three detainees were released pursuant to court order during the Bush Administration–meaning 530 of the 533 releases prior to January 20, 2009 were wholly at the volition of the Bush Administration.
  6. The military commissions have malingered thanks largely to strategic policy and litigation decisions made initially by the Bush Administration to test the statutory (and, later, constitutional limits) of military jurisdiction–decisions that were by no means inevitable or without less controversial alternatives. The Obama Administration, to its perpetual discredit, continued to defend some of those decisions, and Congress exacerbated matters when, at the Bush Administration’s insistence, it intervened by enacting the Military Commissions Act, but the initial arguments that triggered such strong judicial push-back were crafted and made by Bush Administration lawyers.
  7. The “advantages” of the commissions have nothing whatsoever to do with discovery of classified information by criminal defendants (which is protected in civilian court by the Classified Information Procedures Act) or a right to counsel. Instead, the far more significant differences almost certainly involve the different treatment of hearsay in civilian courts vs. military commissions, and the as-yet-unresolved status of the Confrontation Clause in the commissions–and whether defendants have a constitutional right to confront the evidence and witnesses against them on par with civilian criminal defendants.
  8. Finally, it is simply impossible to have an objective conversation about Guantánamo without recognizing the abuses that occurred there, solely under the Bush Administration’s watch, in the early years of the detention program. As President Bush wrote in his memoir in explaining why he thought closing Guantánamo had become a priority, “the detention facility had become a propaganda tool for our enemies and a distraction for our allies.” This narrative had arisen not because of the detentions simpliciter, but because of the serious and systematic baggage that the abuses had created–baggage that, as a ruling by the military commission in the Al-Nashiri case just last Tuesday underscores, continues to loom over the ongoing trials.

It’s not clear to me exactly why the Trump Administration is so committed to rewriting the history of Guantánamo–or to whitewashing the Bush Administration’s role in and responsibility for many of the “problems” it has identified. But for all of the criticisms that have rightly been heaped upon President Obama for failing to fulfill his campaign pledge to close Guantánamo (and, among other things, for actively reinvigorating the military commissions), this apparently organized effort to pin everything that is wrong about Guantánamo on him is belied by the record, and smacks of nothing more than cheap and dirty politics at the expense of substantive nuance, history, and indisputable facts.

Image: An image reviewed by the US military shows a ‘Camp Justice’ sign near the high-tech, high-security courtroom which will hold the pre-trial sessions for Khalid Sheikh Mohammed and his four co-defendants on charges related to the 9/11 attacks at ‘Camp Justice’ on December 07, 2008 in Guantanamo Bay, Cuba. Khalid Sheikh Mohammed, the alleged mastermind of the September 11, 2001 attacks, is set to appear Monday before a US military tribunal where he will face victims’ kin for the first time. (Photo by Mandel Ngan-Pool/Getty Images)


About the Author

Co-Editor-in-Chief of Just Security, Professor of Law at the University of Texas School of Law Follow him on Twitter (@steve_vladeck).