More on the Committee Chairs' Letter

By Benjamin Wittes
Wednesday, July 20, 2011, 3:35 PM

Wells rightly points out the ridiculousness of the various House committee chairs yesterday demanding that President Obama follow the terms of unenacted legislation. I want to point out another feature of their letter, and area in which the House GOP members have a legitimate anxiety yet display no awareness of their own role in creating the circumstances that give rise to that anxiety.

The body of their letter is devoted, as the members put it, to complaining about "the lack of a comprehensive detention system to incapacitate and interrogate terrorists captured outside of Afghanistan." They write:

We are concerned that the lack of a comprehensive military detention system will continue to have numerous detrimental results, including: incentivizing lethal operations over law of war detention; the loss of critical detainee-provided intelligence; forcing the United States to be wholly dependent on foreign governments to hold and provide access to detainees; and, as in Warsame’s case, bringing terrorists to the United States.

We recognize that there are significant reasons for not bringing detainees to Afghanistan from other areas of ongoing hostilities. However, this is the very reason another location for detention must be used. Such a location is already available at Guantanamo Bay.

I agree with them. The administration is being pig-headed about Guantanamo--insisting that it is going to close it when it is not, insisting that the facility erodes our moral standing abroad and thus helping ensure that it does, and refusing to embrace Guantanamo as the one facility that now represents everything Obama has ever said he wants in a detention system. It would be great if Obama, who insists he is for keeping all dispositions on the table for detainees, were willing to use this facility in a serious way. It has a role to play.

And all that said, I could not in good conscience recommend that Obama bring anyone new to Gitmo under current circumstances--not Ahmed Warsame, and not the next guy either. The reason is that Congress has made it virtually impossible for anyone ever to leave Guantanamo--either into the U.S. civilian system or abroad. And nobody who has to actually run a detention system will find attractive a site that functions as a detainee Roach Motel. A well-run military detention system is a fluid operation, with people coming in and going out as opportunities present themselves. If Congress is serious about encouraging the use of Guantanamo, it can't make the price of its use an inability of the president to maneuver. As long as it does so, Guantanamo will remain a legacy detention site, not a live option for new cases.