Shutter Island

In January 2009, President Barack Obama signed three executive orders on detention policy, including one directing Guantanamo Bay’s closure. Yesterday, after struggling to meet that goal for four years, he called once again for shuttering the island detention facility, as part of a broader shift in U.S. counterterrorism policy to a sustainable, long-term framework that relies less on military power and more on diplomacy, development, intelligence, and law enforcement.

What’s changed in four years to make that outcome more likely, such that the president would once again stake his prestige and power on Guantanamo Bay? Quite a bit, it turns out, and those changes may mean the difference between the failure to close Guantanamo in his first term, when I served as a political appointee responsible for detainee policy at the Pentagon, and success in doing so now.

During the 2008 presidential campaign, both candidates said they would end detention at Guantanamo Bay. In March 2008, Sen. John McCain told a Los Angeles audience that "we should close Guantanamo" because "[w]e must fight the terrorists and at the same time defend the rights that are the foundation of our society. We can’t torture or treat inhumanely suspected terrorists we have captured." Then-Sen. Barack Obama repeatedly said "we’re going to close Guantanamo" and make other reforms to U.S. detention policy, including granting habeas corpus rights to detainees and reforming military commissions. These statements echoed earlier promises by President George W. Bush to close the much-criticized facility, and less visible planning to do so by then-Defense Secretary Robert Gates and his staff.

Unfortunately, this consensus vanished almost as soon as President Obama signed his executive orders in January 2009. The Republican Party came out swinging, led by former Vice President Dick Cheney, who sharply criticized the new president’s detention policy, declassification of Justice Department torture memoranda, and other national security moves. Congressional Republicans championed a series of bills starting in May 2009 that increasingly restricted the president’s power to transfer detainees to the United States for prosecution, transfer detainees abroad, or construct new domestic detention facilities. These GOP tactics were aided by congressional Democrats who said they could not afford the political cost of bringing detainees to the United States, even for prosecution in federal court or continued detention by the Pentagon in a super-secure facility. And these legislative obstacles worked because congressional power to limit expenditures is nearly absolute. Without appropriated funds, our efforts to transfer, prosecute, or incarcerate detainees elsewhere ground to a halt.

Today, though, the calculation should be different. For one thing, the United States no longer has more than 100,000 troops in Iraq, and it is dramatically reducing the number of troops it has in Afghanistan. That should mollify concerns about detainee recidivism and the extent to which releasing detainees could put our troops at risk from future attacks by Guantanamo alumni.

The public has also grown weary of the cost of the post-9/11 wars, in which Guantanamo has been buried as a very expensive line item, costing billions of dollars since its opening in 2002. When the Afghanistan war winds down in 2014, there will remain little appetite for the continued deployment of thousands of troops to Guantanamo Bay as guards, interrogators, medical personnel, and support troops, especially for a dwindling detainee population. We called this the "Rudolf Hess" problem in the Pentagon, a reference to the Nazi leader whose continued detention until his death in 1987 required operation of an entire prison.

Additionally, the combination of U.S. raids, airstrikes (including those by drones), and efforts by allied military and intelligence agencies in Afghanistan and Pakistan have transformed al Qaeda from a network planning future attacks to a network struggling to survive. In the words of James Clapper, the director of national intelligence, our efforts have "degraded core al Qaeda to a point that the group is probably unable to carry out complex, large-scale attacks in the West." U.S. and allied forces have also substantially degraded al Qaeda’s franchises in Yemen, Somalia, and elsewhere. The results of this successful offensive strategy, coupled with aggressive law enforcement and homeland security efforts at home, are clear: no large-scale attacks since 9/11 and many fewer attacks abroad as well. Consequently, as the president said, we are now able to see the point at which the current war will end, and the United States can transition to a post-war counterterrorism strategy that relies less on military force.

In 2009, when I served at the Pentagon, we carefully reviewed every detainee’s case and made judgments about which detainees could be released, transferred, or prosecuted — as well as those we recommended for further detention. A council of senior officials from several agencies (including political appointees and national security professionals from the civil service) made these decisions on the merits of each detainee’s case before coming to a decision. (These decisions were ultimately ratified by the deputies and principals committees of the National Security Council, and published by the Justice Department in 2010.)

However, in many cases, we could not act on these recommendations because of the risk that some detainee might pose after release or transfer. Often this perception of risk rested on a judgment that the situation in Yemen, Afghanistan, or some other location was precarious, or the judgment that al Qaeda would be strengthened by the addition of its former operatives. We had to balance the president’s 2009 directive to close Guantanamo with the imperative to keep al Qaeda on the ropes, and to do no harm to broader U.S. strategic interests in places like Yemen and Afghanistan. This tension grew with each event like the failed Christmas Day 2009 airliner bombing, and the broader metastasis of al Qaeda on the Arabian Peninsula. Congressional restrictions passed starting in 2009 required the secretary of defense to certify that detainees would pose no risk to U.S. interests after they left Guantanamo. In this uncertain environment, neither the secretary nor the administration could make such a certification.

Judging by his remarks yesterday, President Obama believes this risk calculus has changed. "Our systematic effort to dismantle terrorist organizations," including U.S. counterterrorism strikes using drones and special operations forces, will continue for a time, he said. "But this war, like all wars, must end." And with it will end the legal au
thority to keep detainees under the laws of armed conflict for fear they may return to a hot battlefield to fight against us once again.

Ultimately, closing Guantanamo Bay will require transferring its occupants to the United States or other countries, including places where the security situation may still be tenuous. The decision to accept the risks inherent in those transfers is one that only the president — the commander-in-chief of the armed forces, and the only elected member of the chain of command — can make. It is a courageous political decision, given the record of recidivism to date. But I believe it is the right decision, and the only thing that can enable Guantanamo to eventually close.