Jack Goldsmith and Jane Harman on Closing Guantanamo

By Benjamin Wittes
Wednesday, February 11, 2015, 2:00 PM

Jack Goldsmith and Jane Harman had a piece in the Washington Post a few days ago on the Guantanamo closure question:

Guantanamo should be closed but not until the president presents a realistic plan and makes his case to Congress and the nation. Any blueprint must address very real issues related to the island facility’s 122 remaining detainees.

. . .

The biggest problem is a group of up to 68 higher-risk detainees. Seven are being tried in military commissions. But as Obama noted six years ago, the others “pose a clear danger to the American people.” The men in this category, the president explained, “received extensive explosives training at al-Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.”

Guantanamo cannot and should not be closed until there is a concrete plan to prosecute these men, or, if necessary, detain them in a lawful way that ensures they can never inflict grievous harm again.

. . .

Closing Guantanamo must not mean ending detention of these dangerous men, though the two are often confused. The main question is, where will they be incarcerated — in Cuba or in the United States?

The case for sending them to a secure but humane prison in the United States is that keeping them in Cuba, on balance, hurts U.S. interests. Guantanamo was established to be beyond the reach of U.S. law, a premise the Supreme Court rejected in Rasul v. Bush and Boumediene v. Bush. The facility is “a propaganda tool for our enemies and a distraction for our allies,” as former president George W. Bush said in a memoir in the course of explaining why his administration “worked to find a way to close the prison.” For similar reasons, closing Guantanamo remains high on Obama’s agenda.

There are no appealing solutions, but members of Congress who dispute the national security assessment of two commanders in chief should consider this: Transferring the detainees to the United States is an opportunity to strengthen the legal basis for their long-term detention, which becomes more fraught as the armed conflicts in Afghanistan and against some components of al-Qaeda wind down.

I think this last paragraph touches on a profound and important point that may hint at a fundamental trade-off that could animate a Guantanamo closure. One problem that has always served to confuse the Guantanamo debate is whether to treat Guantanamo simply as a legacy problem or as a problem having implications for future detentions. Right now, the issue of future detentions is largely hypothetical, because U.S. forces are not capturing detainees in any large numbers whom we cannot process through the criminal justice system or transfer to foreign forces. But that may not always be the case.

Right now, we have no good answer to the problem of what to do about future long-term detainees---except to hope it does not arise. The Obama administration refuses to bring new detainees to Guantanamo, and Congress refuses to countenance a detention facility other than Guantanamo. The Obama administration also refuses to contemplate detention as anything other than a legacy issue---that is, it refuses to contemplate the legal infrastructure for future detentions, even as it seeks a whole new AUMF for a new phase of the conflict.

Guantanamo closure offers a possible opportunity for breaking through this very silly stalemate. Republicans would have to give up their opposition to an alternative, state-side detention facility. But they could demand in exchange both a lifting of the administration's insistence on never bringing a new detainee to this long-term detention facility and a strengthened statutory framework in which to do so. At senior levels of the military, you often hear both the anxiety that Guantanamo has done real damage to American interests and the anxiety that the United States lacks a facility to do its detentions. If Guantanamo closure offered an opportunity to solve both of these problems, it would be something I could very strongly get behind.