Detention & Guantanamo

A Meeting of the Minds: A Formula for Closing Guantanamo

By Benjamin Wittes
Friday, January 22, 2016, 8:29 AM

Steve Vladeck and I have a piece in the Washington Post today offering a formula to break the executive-legislative stalemate on Guantanamo—one predicated on the idea of designating a permanent site in the United States for all current detentions and whatever future detentions subsequent administrations may engage in. We argue:

We, too, differ on the need for (and wisdom of) future detention authority. But we agree that there is a formula for closing Guantanamo without settling the question one way or the other — and, thus, a way for bipartisan majorities in both houses of Congress to pass a bill that would cut Guantanamo’s Gordian knot. The compromise we envision has five relatively straightforward components:

●First, it would authorize the executive branch to transfer all remaining detainees to a specific civilian or military federal prison facility within the United States, with a ban on release from that facility except (1) pursuant to a judicial order or (2) for the purpose of transferring them to the custody of a U.S. court or a foreign sovereign.

●Second, it would provide that any person convicted by a military commission would serve his sentence at the same facility.

●Third, regardless of where the facility were located, the bill would provide that the U.S. District Court for the District of Columbia would continue to exercise jurisdiction over all civil actions, including habeas petitions, filed by detainees transferred to that facility from Guantanamo.

●Fourth, the bill would provide that it had no effect whatsoever on substantive law, including the legal authority to subject terrorism suspects to military detention under other statutes, such as the September 2001Authorization for the Use of Military Force and the fiscal 2012 National Defense Authorization Act.

●Fifth, it would declare that this same facility would be the permanent site for any future detentions under those statutes.

And we conclude:

Such a law would give both sides big wins. It would allow the president to finally close Guantanamo and distance the United States from the historical and political baggage associated with it. But it would also allow Republicans to claim that they had established a permanent site for future detentions. Obama is not going to engage in any of those future detentions, but such an approach would mean that future presidents and Congresses would have a site available if they went in a different direction on that question.