Detention & Guantanamo

GTMO in the SOTU

By Jack Goldsmith
Thursday, January 14, 2016, 6:32 AM

“I will keep working to shut down the prison at Guantanamo: it’s expensive, it’s unnecessary, and it only serves as a recruitment brochure for our enemies,” said President Obama in his final State of the Union address.  A few days earlier, White House Chief of Staff Denis McDonough seemed put down a marker about Guantanamo.  The President “feels an obligation to his successor to close that, and that’s why we’re going to do it,” he said on Fox News.

In an essay at time.com, I explain why I don’t think the President is “going to do it.”  Many of these reasons will be familiar to Lawfare readers: the congressional transfer restrictions stand in the way, the arguments for disregarding them are weak, even if the President buys the disregard arguments, the logistics of retrofitting a prison and bringing 50 or so detainees here in the face of congressional appropriations restrictions are daunting, and the like.  I also argue – “speculate” is a better term – that closing GTMO unilaterally is not likely to burnish President Obama’s legacy in the short run or the long run.    

A provocative defiance of a law that embodies the popular will on an issue of national security by a late-term President whose seriousness in that context has been questioned lately would be unpopular and controversial. Congress would go ballistic. The issue would not go away in the next administration, as Republicans and many Democrats would try to reverse the President’s move. President Obama would thus be doing his successor no favors. He or she, and the presidency, would suffer dealing with the fallout. Candidate Clinton might be hurt by the fallout sooner if the President puts in motion the Guantanamo closure before the election, which he almost certainly will need to do.

And what would the president’s legacy gains be, assuming the transfer sticks? He would have followed through, finally, on his first-week pledge to close Guantanamo. He will argue in his memoirs that he restored core U.S. values and dampened terrorist recruitment.

But these arguments are likely to ring hollow. The terrorist threat will persist no matter what happens with Guantanamo. Historians will wonder why the President did so little to work with Congress to close Guantanamo, especially early on when he had more leverage. They will discount any achievement of unilateral closure as a result of the messy consequences that followed.

Most importantly, over time it will not seem like the President changed the value equation. Fifty dangerous terrorists would remain in indefinite detention in a U.S. maximum security prison where they would likely have less freedom of movement than on the sunny and secure Cuban island. A new round of litigation would ensue, but Congress would quickly bolster the already-strong legal basis for detention, and courts that had no trouble upholding indefinite detention in Cuba would be unlikely to order the terrorists’ released into the United States.  It won’t take long for critics on the left to talk about the stain of indefinite detention that President Obama alone brought to U.S. soil, a stain that critics on the right will say the President bought at the price of the rule of law.

I conclude that the President’s least bad option on GTMO “is to appear to want very much to close Guantanamo (which he does), and to talk and act as if he is doing all he can, but to capitulate in the end.”  We will soon find out.