Guantánamo Drift

SAUL LOEB/AFP/Getty ImagesA promising start: President Obama signs an executive order closing the prison at Guantnamo Bay in January 22.

For those of us who have been working to close the U.S. detention facility at Guantnamo Bay and end years of disregard for the rule of law, January 22, 2009 was a good day. May 15, 2009 was not.

Back in January, President Barack Obama signed three executive orders banning torture, initiating the process for closing Guantnamo and ordering a review of detention policy going forward.

The fanfare with which the orders were rolled out suggested the Obama administration was going to dramatically change the U.S. approach on this bundle of issues. Yes, there was vague language that technically left many options open, but the general sense among those who follow this issue closely was that the administration was intent on reviewing all the files, releasing or transferring some detainees, and bringing to justice those who should be charged with crimes in the U.S. criminal justice system because of its far superior record in convictions compared with military commissions.

Progress has been slow over the last few months and only two detainees have been released, but that was to be expected given the amount of work involved.

Then sometime in April, perhaps coinciding with the release of the Bush administration’s Office of Legal Counsel memos, what seemed like an ominous rumor began to appear in newspapers: the Department of Justice was losing out to those in the Department of Defense who wanted (pause for drum roll) the return of military commissions. It was a rumor confirmed on May 15 when the Obama administration announced that it was going to reform the military commission process.

Last year, I led a working group that over eight months met 18 times to puzzle over how to close Guantnamo. This was a nonpartisan effort combining military, intelligence, human rights, and legal expertise. We brought in about a dozen additional experts to discuss various options. Not once can I remember anyone in all the hours of discussion suggesting that a good option was somehow to go back and rework the military commissions.

Instead, we were driven toward the U.S. criminal justice system in our thinking because of the empirical record. According to a heavily researched report by two former prosecutors, Rich Zabel and Jim Benjamin, for Human Rights First, this system had succeeded in at least 145 convictions of international terrorist cases since 2001 versus a total of three from the military commissions. Plus, years of litigation attacking the constitutionality of the rules governing the commissions had added to this new legal system being thoroughly discredited. Or so we thought.

So what happened? How did we get back to this flawed approach? The complete answer will only come after some digging and leaks, but here are some preliminary conjectures about what is driving the administration’s actions:

The government seems to want to decrease its chances of terrorist suspects being acquitted. If that is a key motivating factor, then we are not reembracing the rule of law but moving toward a system of special courts.

Bureaucratic drift might have played a role. According to the action memo released by the Department of Defense on May 13, this approach arose straight out of the interagency task force, then went to the principals committee and on to the president. If we had had a blue-ribbon, nonpartisan panel of eminent Americans whose primary job was to oversee the process of closing Guantnamo, would we have gotten this recommendation? If there was to be a real shift, a move toward trying these detainees in the regular courts, it needed serious political juice behind it. That’s what we saw on January 22. That is not what we got on May 15.

Perhaps the Department of Defense simply trumped the Justice Department, despite the empirical record. I hope this is not the case. It would be a tremendous disservice to those in uniform who wanted us to reembrace the rule of law.

Regardless, closing Guantnamo is likely to get even more complicated because Republican members of Congress are campaigning actively against any detainees being moved to their districts. This will hold up the release of Uighur detainees from Guantnamo, whom the Bush administration slated for transfer years ago. It will also prevent criminal trials for those who could be prosecuted and held in pretrial detention facilities. If that grandstanding turns into law, it will be simply impossible to close the facility. And yet, the Obama administration appears to have no legislative strategy for fighting back.

If Congress moves to block any Guantnamo detainees from coming to the United States, there will be zero incentive for friends and allies around the world to help resettle detainees themselves. It will be less clear to everyone how exactly the Obama approach is different from the Bush approach, which relied on military commissions.

When White House spokesman Robert Gibbs tried to spin the return to commissions, he used an unintentionally apt analogy about how they were like a used car that needed a new engine and a new paint job. Unfortunately, this used car has no brakes. If the Obama team continues on its current path, Guantnamo will be theirs forever, just as it was under the Bush administration. Buying back this lemon was a terrible idea.