Detention & Guantanamo

A Defense Against Accusations of Heroism

By William Lietzau
Thursday, January 21, 2016, 7:39 AM

A few weeks ago a Reuters article, “Pentagon Thwarts Obama’s Effort to Close Guantanamo,” described a scheme by which disloyal Defense Department officials—myself and General John Kelly, USMC, included—had used bureaucratic chicanery to frustrate their commander-in-chief’s efforts to reduce the Guantanamo (GTMO) population. A few days later, an Investor’s Business Daily editorial, “Pentagon Heroes Blocking Obama's Traitorous Gitmo Prison Break,” which purports to quote me absent any interview or opportunity to opine on the storyline, called these same individuals “national treasures” and “unsung heroes” for obstructing a “traitorous” commander-in-chief. Then, last week the Administration announced that it has finally reduced the Guantanamo population to below 100 in furtherance of the national security goal President Obama articulated in an executive order on his first day in office. What explains the inconsistency of these three contemporaneous narratives? Just as bad facts make bad law, here we have bad facts making bad foreign policy. In this case, however, the facts are not only bad but also inaccurate.

Ironically, the announcement of additional GTMO transfers came on the heels of General Kelly’s retirement from the Marine Corps and his relinquishment of Southern Command, the combatant command with responsibility over GTMO. I, myself, resigned as Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy two and a half years ago. So, should the nation lament the departure of patriots who had been working to frustrate misguided policies? Or should it celebrate the fact that the President has finally pushed past an insubordinate Pentagon and is moving to fulfill his inaugural initiative of closing Guantanamo?

Although I’d certainly prefer to be deemed a “hero” over the alternative, and would not wish to appear ungrateful for the moniker “national treasure” either, every American familiar with the Constitution should question the nobility of public service that involves disloyalty to one’s commander-in-chief. Americans deserve a president who is not a “terrorist sympathizer,” as suggested by the IBD editorial, but they also deserve a military that provides loyal service to its constitutionally elected president. Fortunately, neither of these narratives is accurate; both suffer from fallacious factual predicates and each says more about the polarization of our polity than anything about thoughtful foreign policy or the appropriate role of military officers.

As I have consistently made clear, I am no fan of the excessive and counter-productive focus on closing Guantanamo. I believe the oft-repeated promise to close the facility, only exacerbates the misperception that wartime detention runs counter to the rule of law. And the consequent reluctance to detain extends the conflict—and, concomitantly, Guantanamo—by removing a life-saving and intelligence-producing capture option.

At no time during my tenure, however, did I engage in or observe others engage in the obstreperous disloyalty to our commander-in-chief described by the Reuters article. My own emphasis on a principled, credible, and sustainable detention policy—different from, but not opposed to, Guantanamo closure—was no secret. And I made it clear on the day that I accepted my previous job that I would never refrain from giving unvarnished advice, even if it ran counter to that of others (as it often did). But I did not give that advice publicly, instead promising to resign if I could not live with the decisions that were made. And neither I nor, to my knowledge, anyone with whom I worked at the Pentagon ever took actions inconsistent with presidential decisions.

During my three-plus years overseeing the Pentagon’s detention policy, decisions regarding transfers were made by an interagency working group, which I co-chaired alongside a State Department Ambassador. And, despite the recent allegations of obstructionist behaviors, I can recollect no occasion in which a decision whether or not to transfer a detainee was made by anything but unanimous agreement. Specifically, we would assess the utility of a receiving country’s security assurances in comparison to the threat of a dangerous detainee who was designated for transfer with appropriate security assurances. I emphasize the later clause in order to distinguish from the term “cleared for release” used by the media and often falsely accompanied by the misnomer “who pose no threat.” In this context, unanimous decisions not to transfer were based on the evidence presented and cogent arguments, and not on obstructionist trickery – contrary to the allegations of some seeking to serve personal political ends.

So where does this leave us? The answer is anything but comforting. I can confidently state that the President is no traitor, and equally, that his subordinates are not insubordinate. That said, it is difficult to understand the perplexing development in which unanimous decisions are now overturned with no apparent change in circumstances. Indeed, the opportunity for terrorist reengagement has clearly increased since I departed government, and yet the exodus from Guantanamo has accelerated. And the vexing, to some, problem of an open Guantanamo remains. But here is where the bad facts contribute to bad law. The actual reason Guantanamo remains open is because detention is an accepted and expected consequence of warfighting.

The increase in releases and the near decade of unsuccessful attempts are both explained by the excessive and singular focus on closing Guantanamo at the expense of ending the war. Today, committed terrorists are released without even exacting from them the traditional wartime parole agreement in which they promise not to reengage in combatant activities. Yet, we continue to kill their compatriots in an extrajudicial process that can only be justified as a consequence of armed conflict.

For the last decade, we have been fighting a war against transnational terrorist organizations—an endeavor which, as a legally cognizable armed conflict, is somewhat new to recent history. This development is forced upon us by the terrorists. But we are also fighting a war with novel qualities of our own making. Today, we engage in a war that blurs the lines between traditional peacetime law enforcement and traditional armed conflict. Even within the realm of armed conflicts, these engagements challenge the Geneva Conventions’ parsing of “international armed conflict” and “armed conflict not of an international character.” More importantly, however, the attempted gradual nature of our withdrawal has caused us to move from a posture of total warfighting commitment for as short a period as possible, to one of partial commitment that may yield a perpetual war.

It is this perpetual quasi-war that should frighten us most. And I believe the excessive focus on Guantanamo’s closure is, if not responsible for the perpetual nature of that war, at least illustrative of the deeper malady of this focus of mitigating the war rather than ending it. Traditionally, prisoner of war camps are closed when armed hostilities cease—when nations decide that the immediate threat is sufficiently reduced such that they can revert to traditional law enforcement means to cabin it. Until now, the United States had not seen a concentrated and formidable effort to close a prisoner of war camp while the country remained engaged in lethal targeting and faced an increasing enemy threat. Fighting a war without a capture option deprives enemy combatants of their lives and allies of useful intelligence. The real harm associated with Guantanamo’s closure, then, comes not from the danger posed by the handful of individuals who are released, but from the hundreds of bed-spaces that remain empty despite ongoing hostilities.

An informed citizenry should reject both narratives regarding the relative value of reducing Guantanamo’s population. Instead, the national security debate should focus on how to move from America’s lengthiest armed conflict back to a law enforcement paradigm. That is the debate worthy of intelligent and patriotic public servants’ attention, and not the debate over who is at fault for failing to release individual detainees.

General Kelly is indeed a hero, but not because he outmaneuvered his boss. He is a hero because he called it like he saw it and did not alter long-standing policies or taint intelligence reports to favor a certain outcome. I would like to believe I did the same. The Pentagon is staffed by dedicated professionals who are actively engaged in U.S. foreign policy deliberations in a manner consistent with constitutional principles. Misguided national security policies are bad, but an insubordinate military is worse. Some public servants might disagree with the decisions ultimately made by our president, but they do so with a commitment to the principle of civilian leadership over the military and to the rule of law.

It is past time to move beyond the debate about who may be preventing Guantanamo from closing and start talking about how to win this war.