Again, What is the Obama Administration's Plan for Guantanamo?
The Obama administration has threatened to veto the NDAA if it contains provisions that continue to restrict transfer or Guantanamo detainees into the United States or to other countries, and NSC spokesman Tommy Vietor -- reiterating the President's recent statements -- said in response to the GAO report on the feasibility of closing Guantanamo that "We still believe that it’s in our national security interest to close the prison at G
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The Obama administration has threatened to veto the NDAA if it contains provisions that continue to restrict transfer or Guantanamo detainees into the United States or to other countries, and NSC spokesman Tommy Vietor -- reiterating the President's recent statements -- said in response to the GAO report on the feasibility of closing Guantanamo that "We still believe that it’s in our national security interest to close the prison at Guantánamo Bay." These are old debates, brought to the fore again by recent events on Capitol Hill.
I was asked by several reporters yesterday whether I agree with the Obama administration's stance, and although in principle I think Guantanamo should be closed (depending much on how) and I oppose transfer restrictions on the president's discretion for handling specific cases, I can't say yes because I don't know what Obama administration's alternative plan is.
Some Obama supporters have always equated his close-Guantanamo pledge with ending detention-without-trial, but the President has never said that was his alternative vision. To the contrary, in his 2009 National Archives Speech he stated that:
there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. ... Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. ... I know that creating such a system poses unique challenges. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
Is that still the President's position and plan -- if I understood it correctly, to work with Congress on a program that includes continued detention without criminal conviction of some limited category of Guantanamo detainees? I ask because I can't meaningfully assess whether he's right that we'd be better off without Guantanamo without knowing something about his envisioned alternative. I can't meaningfully assess the claim that Guantanamo undermines U.S. national security, which the administration often pins heavily on the negative propaganda and international friction resulting from Guantanamo's continued operation, without considering whether a proposed alternative would significantly alleviate those costs. Many Guantanamo critics believe that a legislated administrative detention system inside the United States would be worse than the status quo, by institutionalizing detention-without-trial for certain categories. I disagree with that sweeping position, though, again, it depends on the details.
I urge journalists following this issue to stop asking whether it's possible to close Guantanamo and whether the Administration still intends to, and instead press the more consequential questions of how.
Matthew Waxman is a law professor at Columbia Law School, where he chairs the National Security Law Program. He also previously co-chaired the Cybersecurity Center at Columbia University's Data Science Institute, and he is Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.
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