"How to Close Guantanamo" New York Times Style

By Benjamin Wittes
Monday, September 21, 2015, 4:12 PM

I normally don't write about the substance of New York Times editorials, prefering to keep my role pure as the Grey Lady's unofficial—and lamentably unpaid—fact-checker on national security legal matters. But Sunday's editorial on "How to Close Guantanamo" requires brief comment. The Times, as it turns out, has a novel plan for effectuating the long-sought closure of Guantanamo: If we simply assume away all of the difficulties, the editorial informs us, then—presto!—President Obama could close the detention facility tomorrow.

If you don't believe that this is how the Times handles all of the problems that encumber a Guantanamo closure, let's take them one at a time.

First, the paper notes, 53 of the 115 remaining detainees have already been cleared for release. So . . . just release them! Never mind that it's not always that easy to just release people. You have to find a country that will take them. You have to make arrangements with that country both for the individual's reasonable treatment and to mitigate the security threat that he poses. And given that many of the cleared detainees come from chaotic, ungoverned Yemen, which has no government with which to make such arrangements, you have to figure out what to do with Yemenis who cannot easily go home. Never mind all that, The Times insists: "many countries have stepped forward to offer to take in cleared detainees, including Yemenis." The real problem, according to the paper, is that Secretary of Defense Ashton Carter is not moving fast enough. Its solution? He should speed up. Or in the alternative, President Obama could simply order the Justice Department not to defend their habeas petitions. In other words, if the United States simply dispensed with practical concerns and released people, it could release people.

Then the editorial turns to the problem of those not charged with a crime but deemed too dangerous to release. The solution? Don't deem anyone as in this category. "The government intends to continue holding them indefinitely as 'enemy combatants,' relying on the legal authorizations Congress passed for the wars in Iraq and Afghanistan. This is unacceptable in a country that often lectures other governments for imprisoning people without due process. If the government is unwilling to prosecute these men, it must release them." (The Times is actually wrong on this point. The government, to my knowledge, does not rely on the Iraq resolution for any Guantanamo detentions.) Again, the Times has assumed away the issue. Along the way, it has called for the release of high level Al Qaeda figures, some of whom have not had a plausible criminal case materialize against them yet. Does the Times really favor releasing Abu Zubaydah, Hambali, and Mohammed Al-Qatani?

Finally, the Times turns to the problem of the military commissions, which it terms a "legal farce and a practical failure." The solution? Don't try people in military commissions. Oh, but isn't it illegal to bring them to the United States?

Well, yes, but that problem can assumed away too.

"It is long past time for this nonsense to end," the paper reminds us. "Many people bear responsibility for [Guantanamo's] creation and its continued operation, but only one man has the power to generate the type of momentum needed to end this legal and moral abomination."

Apparently, if President Obama clicks his ruby slippers three times and says, "there's no place like home," the law will change and everyone who isn't released can be tried in a federal court.

When he's done closing Guantanamo, maybe Obama can assume ISIS away too.