At last week’s Senate Judiciary subcommittee hearing, advocates of closing Guantanamo, such as chairman Dick Durbin and Human Rights First president Elisa Massimino, talked about how to close Guantanamo: in particular, by transferring or releasing most detainees to other countries and then moving the remainder into the United States. Of those moved into the United States, many would be prosecuted (whether in civilian or military courts), but an undetermined number of very dangerous detainees would continue to be held without criminal trial under law-of-war authority until cessation of hostilities – that is, until the end of the ongoing war against al Qaida and its close allies. Some version of this seems to me to be the only realistic approach to closing Guantanamo.
Although pulling this off will require that President Obama spend tremendous political capital, it would actually push some very difficult decisions onto his successor’s shoulders, too.
Even if it closes Guantanamo along the lines laid out above, it’s very unlikely that the Obama administration will have prosecuted or found alternative security solutions abroad for some number of the most dangerous detainees (by most credible estimates, at least a few dozen). It’s also very unlikely that they’ll simply release them – especially because whatever political deal Obama strikes to close Guantanamo will probably include assurances that he won’t do that.
To deal with these toughest cases, one possibility is that the Obama administration closes Guantanamo but does not declare the armed conflict with al Qaida to have ended during this presidential term. The most dangerous detainees who are not prosecuted could then continue simply to be held under existing law-of-war detention authorities. This will anger many Guantanamo-closure advocates who see that facility as merely a manifestation of the much larger problem of detention without trial, but some of those advocates are willing to give a little ground on this issue, at least for what they sometimes refer to as Bush-era "legacy" detainees. Alternatively, President Obama might declare an end to the war with al Qaida (that would allow him to claim he ended three wars) but assert a continuing “wind-up” legal authority to deal with some remaining cases. Either way, the ultimate decisions whether to release some of the hardest detainee cases will very likely be deferred to the next presidential term.
Besides the obvious point that we don’t know what that next president’s detention policy or campaign promises will be, several factors will shape that next administration’s decision-making in ways that differ from Obama's.
First, in closing Guantanamo, President will have declared those remaining detainees -- in his own judgment and in the judgment of his national security cabinet -- too dangerous to release. That is, the very security arguments that President Obama makes in the course of closing Guantanamo will constrain the next president.
At the same time, the arguments that it's in our national security interest to close Guantanamo (such as propaganda and terrorist-recruiting value) will be significantly diluted. Presumably Obama will have justified his decision to move detainees into the United States on the grounds that it's dangerous to national security to keep Guantanamo open but not dangerous to national security to continue keeping some detainees without trial in the United States.
Additionally, assuming that President Obama closes Guantanamo but doesn’t declare a cessation of hostilities with al Qaida, the remainder of these non-prosecutable-but-dangerous detainees will put pressure -- from both sides -- on the President's (and perhaps Congress’s, as well as courts’) decision about whether the armed conflict persists. It will be harder to characterize continuing detention versus release/transfer as a policy judgment about individual detainees; instead it will be framed as a legal one about the conflict as a whole. If President Obama does declare an end to the war but claims a continuing “wind-up” detention authority, the same will be true, but the legal debate will be about the extent and duration of that authority.
Finally, as just alluded to, it’s not clear what the other branches will do once detainees are moved into the United States, and how that might either box in or relieve pressure on the next president. Even if President Obama wouldn’t want it, maybe Congress will enact aggressive new detention legislation that applies to these remaining detainees -- especially if the next president asks for it. Perhaps political support for new detention powers might be greater with releasable detainees inside the United States than if they were outside it, or perhaps continuing detainee transfers and movement of some detainees into the United States will demonstrate that the risks of further releases or transfers are quite manageable. Maybe courts will take a tougher line against the government with respect to law-of-war detention (or post-conflict detention) than they have so far. It's hard to predict, but I doubt we'll know the final answers to these questions during the Obama presidency, even if he succeeds in closing Guantanamo on his own watch.
In other words, any plan to close Guantanamo will be very difficult politically for Obama to pull off during the remainder of his term, but it will also still probably involve kicking to the next president and his or her counterparts in the other branches of government some equally difficult decisions.
Advocates inside and outside the government of closing Guantanamo will be emphasizing in coming months that the second-term Obama is willing to take upon himself political accountability for transfer or release decisions, and that Obama does not want to leave this issue for the next president. Especially with so much to do in so little time, that’s probably impossible.