In an act of shocking infidelity to Lawfare, I posted this on the Brookings web site. For those too lazy to click on the link–or too mortified by my unfaithfulness to dignify it by doing so–here is what I wrote:
It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his third anniversary failure.
Faced with a recalcitrant Congress, the inability to bring detainees to the United States for trial, and a security situation in Yemen that does not favor the repatriation of large numbers of that country’s nationals, the administration has so far lapsed into paralysis. Obama continues to mouth his commitment to closing Guantanamo but is unwilling to exercise the powers of the presidency to prevent his policy’s frustration. An endless series of leaks and trial balloons promise policy initiatives that do not materialize. And the administration is left mired in the constraints of law, politics, diplomacy and the president’s own rhetoric.
I have a suggestion for the President: Since he is not going to close Guantanamo, he should embrace it.
I don’t say this lightly. I have never before argued against closing Guantanamo, and to be clear, I don’t oppose doing so now. But if Obama is not prepared to do what it takes to effectuate his preference, he should stop pretending and face the fact that the Guantanamo he is stuck with is not that bad. Indeed, it’s something he could talk about very differently from the way he does.
Guantanamo today is not the Guantanamo of the early Bush administration—a site chosen for its lying beyond the reach of the U.S. courts. As I point out in my new book on detention policy, Detention and Denial: The Case for Candor After Guantanamo, it is now a unique detention site for almost the opposite reason. Alone among facilities used by the military to detain enemy forces in the war on terror, detentions at Guantanamo are supervised by the federal courts in probing habeas corpus cases. Detainees there, unlike at any other detention facility, have access to lawyers. Their cases are followed closely by the press, and many hundreds of journalists have been to Guantanamo. What’s more, Obama is reportedly preparing to issue an executive order creating a significant new review process for those detainees who have lost their habeas cases. In other words, while everyone—including Obama—was calling for Guantanamo’s closure, it evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used. While it isn’t the system I would build, it is a system of transparency and review. And that is exactly what Obama has said so eloquently that he wants.
Ironically, the big beef against Guantanamo these days is its reputation, and Obama is contributing to that bad reputation whenever he insists that closing the facility remains a priority. Instead of holding up the changes there as the model of what long-term American counterterrorism detention will and should look like, he delegitimizes the one facility that represents what he purports to want—not to mention the one facility for whose preservation Congress has developed a peculiar fetish.
Instead of fecklessly continuing to argue for the closure of Guantanamo, Obama should announce—maybe in his State of the Union address—that since Congress has made closure impossible, he is committing himself to making Guantanamo a symbol not of excess, not of lawlessness and evasion of judicial review, but of detention under the rule of law. Huge strides, he can honestly say, have been made in this direction both in the last administration and inn his, and with his promulgation of his executive order creating a review mechanism, he will make further strides. In addition, he should commit himself to expanding Guantanamo by bringing to it and subjecting to its processes all counterterrorism detainees captured in the future or held currently anywhere in the world today whom he means to hold in military detention for a protracted period of time. This will ensure that all detainees whom the United States wishes to hold because of something more than a role in local theater operations receive the benefit of the due process norms that have been established at Guantanamo. In exchange, he should ask Congress to ratify in statute the system that has emerged at Guantanamo and lift the restrictions it has imposed both on transfers and on federal court trials.
I do not know if there is a partner in Congress for this deal. But each part of it is good policy on its own terms, and Obama badly needs to change the conversation about Guantanamo. If he is going to be stuck with it, he might as well make it his own.