Guantanamo: Legislation

What the President Could Say in His Speech

By Robert Chesney, Matthew Waxman
Tuesday, May 21, 2013, 1:41 PM

On Thursday, President Obama will be giving a major address on national security and counterterrorism, styled as a companion to the 2009 National Archives address.  That 2009 speech adopted a pragmatic approach blending a renewed emphasis on criminal prosecution and closure of Guantanamo with an embrace of the continued use of military detention and military commissions (albeit somewhere other than Guantanamo) in those instances in which those tools are both lawful and the best available option.

In that speech and since then, the President has repeatedly emphasized three major elements of a counterterrorism legal-policy agenda, but his administration has not followed through in a serious way: (1) closing Guantanamo; (2) working with Congress to put forceful counterterrorism actions (including detention and targeting) on sound and durable legal footing; and (3) making targeted killing more transparent.  If the President intends to use this speech to reinvigorate these initiatives, here is an overview of what he might say:

1. A True Policy, Not Just a Slogan, for Closing Guantanamo

There are now 166 detainees at Guantanamo.  Many of them are already approved for transfer or release, some of them are slated to be prosecuted by military commission, and others the President already acknowledged are likely not prosecutable yet are too dangerous to release or transfer.

Although there are fewer detainees at Guantanamo than when he came to office, Congress has since then imposed legislative restrictions on the President’s discretion to move them out (whether to the United States or to any other location) -- so arguably the President is farther from his goal of Guantanamo closure today than when he started.  The President also cast into doubt his own position on this issue a few weeks ago, when in remarks to the press he seemed to reverse his view that it is appropriate to detain some Guantanamo detainees without trial for the long-run under color of the law of war (that is to say, under color of the legal theory that his own administration has advanced successfully in court for the past five years).

If the President is serious about closing Guantanamo now, he needs to put something concrete on the table and his administration needs to launch a political effort worthy of an issue it calls a national security imperative.  There are some short-term things he could do, and some longer-term initiatives he could outline.  As for short-term items:

  • Restart periodic, individualized review of the need for continued detention in particular cases at Guantanamo (a process that used to occur on a regular basis, and which is way overdue for revival), while also making the case that it is not in America’s national security interest to continue to hold detainees in those situations where other available options can reasonably mitigate their threat.
  • Direct the Secretary of Defense to issue the requisite certifications to transfer detainees from Guantanamo, something that can in fact be done under current statutory restrictions if the administration has sufficient political will to do it.
  • Restart aggressive diplomacy to return transferable detainees, including to Yemen.

It is worth emphasizing that the core substance of those three items were all part of the Bush Administration's Guantanamo policy as well, and used to have bipartisan support.  That said, it is also worth emphasizing that even if these short-term items are effective, this will only reduce the population, not empty Guantanamo altogether; the hardest cases will remain, just as President Obama explained in his 2009 National Archives address.  Which brings us to the topic of long-term initiatives relating to Guantanamo.

Under the long-term heading, it is clear the President is not interested in defending the current location of detention (presumably no matter how robust a review process he establishes and uses). What then?  The President might begin spending the political capital needed to move remaining detainees to an alternative facility inside the United States, as he planned in 2009, such as the facility in South Carolina where former military detainees Yaser Hamdi, Jose Padilla, and Ali al-Marri were held in the past, or the civilian facility in Thompson, Illinois that DOJ purchased last fall.  It is almost impossible to imagine a scenario for closing Guantanamo that does not involve moving some of them here.  Perhaps he might go about this by reopening the possibility of a "grand bargain" with some influential congressional Republicans who may be open to closing Guantanamo but would insist on other counterterrorism legislative reforms.  This brings us to the second major agenda element.

2.  Working with Congress on a Legislative Framework

When the President said in his 2009 National Archives speech that he would “work with Congress” on these issues, many assumed he meant actual legislative reform.  He has repeated that notion again and again, but so far the administration has not come forward with any substantial proposal of its own.  Instead, it has focused on playing defense, albeit rather half-heartedly and certainly ineffectually, each year as Congress has limited his discretion in handling or prosecuting detainees.  In short, the administration's position generally has been that it doesn't want to reopen the 2001 Authorization for the Use of Military Force (“AUMF”), while the President continues to say he wants to work with Congress on this issue but without giving any specifics.

It is growing more difficult to maintain this position.  During a hearing on the scope of the AUMF that occurred last week before the Senate Armed Services Committee, Pentagon officials made waves by suggesting that the conflict under the AUMF could last many more years, and by noting a broad array of groups and geographic locations as to which the AUMF might apply.  Thursday’s speech is an opportunity for the President to get in front of this issue at last (or at least to catch up with it), providing more details regarding the scope of authority he currently believes the government has—and just what authority he thinks the government actually should and should not have.

In a previous post, we outlined some recommendations along these lines, including mechanisms for improving joint executive-legislative deliberation on the scope of the conflict and appropriate statutory restrictions on lethal targeting.  Even if there is presently no need to expand substantive statutory authorities to use force, these clarifications and reforms could serve as a template if expansion were necessary in the future.  Whatever occurs on the substantive authority front, however, the question of transparency and oversight can and should be addressed immediately.  Which brings us to the third category.

3.  Establishing Targeting Transparency

Public transparency has been a rhetorical theme of this administration since the beginning.  It has found, however, that policy and bureaucratic factors encourage only incremental disclosure–and incrementalism doesn’t earn much benefit or credit, especially in an area like targeted killing.  Operational and diplomatic secrecy is important, but it comes at steep price in terms of our ability to instill public confidence and shape international norms.  Indeed, it breeds damaging myths.

The series of speeches by senior administration officials outlining the legal and policy framework for targeting operations have been useful in clarifying many important points, but they fall short of the degree of “transparency” needed for the sake of legitimacy and democratic accountability.  And so the question arises: Will the President make another incremental move with Thursday’s speech, or will he do something bold and substantial?

One proposal that's been floated for a while is to transition targeting operations from CIA to the Defense Department.  This would open up possibilities to be more publicly transparent in how we talk about targeting (without the need to maintain deniability, the government could explain its actions rather than declining comment). Moving targeting operations out of CIA’s hands doesn’t on its own resolve transparency concerns, however.  Such a move would need to be combined with more timely and granular congressional oversight of sensitive DoD operations (see a discussion of Rep. Thornberry’s proposal here).

Whatever becomes of the oversight associated with overseas kill/capture missions, the President also could do much good by stating unequivocally that all strikes are governed by the law of armed conflict no matter who conducts them.  And he would do well to be more candid about collateral damage and the government’s efforts to minimize it even when strikes are not conducted by the military.

As noted at the outset, the President has repeatedly emphasized these three elements – Guantanamo closure, executive-legislative cooperation, and transparency – in a reform agenda.  Whether he announces concrete steps will tell us a lot about whether he’s serious about them in his second term.