The Guantanamo Countdown

President Obama promised to close the facility within a year, but eight months later, the path is looking rockier. Here's what the administration needs to do to meet its deadline.

BY SARAH MENDELSON | OCTOBER 1, 2009

With eight months down and four to go, Washington has suddenly remembered to ask: How is the closing of Guantánamo going? The answer, according to conventional wisdom, is: not great; the one-year deadline was a mistake, and there never was consensus on closure to begin with. Some are on a witch hunt to lay blame. But reports of impending failure are premature, and the preoccupation with not making the deadline is at least somewhat misplaced.

As of early October, in fact, the Barack Obama administration's effort is actually in considerably better shape than it was in May, when it suffered a near-death experience in Congress. Mistakes and missteps have been made, but the rapidly developing conventional wisdom on what these were is simply wrong. Nor are the critics proving helpful in presenting ideas to make the next four months go more smoothly than the last eight.

To be clear, I was a big advocate of the one-year deadline. Last fall, the Center for Strategic and International Studies (CSIS) released "Closing Guantánamo: From Bumper Sticker to Blueprint," a report I wrote drawing heavily on the deliberations of a nonpartisan working group that met 18 times over eight months, consulting dozens of experts. Although it's not a consensus document, we nevertheless concluded that closing the detention facility would take a year and should begin immediately after the inauguration to signal a serious shift with previous policies and to capitalize on President Obama's popularity as well as the wide bipartisan support that did exist for closing Guantánamo. We had thought -- and it seems some, but not all, in the Obama administration agreed -- that the deadline would give the bureaucracy the needed push to move an issue that had been resisted (slow-rolled, in fact) during the George W. Bush administration. We advocated a process we referred to as "review, release, transfer, and try"; in other words, review the files and sort the detainees into two basic categories: 1) release or transfer to a country, and 2) try those slated for prosecution in U.S. criminal courts. As it turned out, gratifyingly, many (though by no means all) of the recommendations from the report were reflected in the president's executive orders famously signed Jan. 22.

One recommendation that the transition team considered but did not adopt was our call for appointing a "blue-ribbon panel of eminent Americans" to lead the effort right after Obama came into office. These messengers would have been trusted emissaries, a solid mix of Republicans and Democrats, people such as Colin Powell, Sandra Day O'Connor, and Lee Hamilton, as well as other retired generals, former senators, and secretaries of state and defense. Their purpose would have been twofold: to provide the Obama team with needed political cover and to convey to the American people and Congress the importance of closing Guantánamo, while also beginning negotiations with other countries to house released detainees. We knew that there was goodwill from European officials; after the CSIS report came out, I received e-mails and phone calls conveying their willingness to help the Obama administration with what were viewed as shared problems.

Meanwhile, Americans needed trusted leaders to explain why closing Guantánamo was important from numerous nonpartisan perspectives and even why receiving detainees into the United States, such as the Uighurs (whom the Bush administration had slated for release), was safe and patriotic. Heavyweights from the security community could have explained how al Qaeda, according to U.S. military officers including Gen. Stanley McChrystal and experts at West Point's Combating Terrorism Center, had used Guantánamo for recruitment. Closing Guantánamo and ending indefinite detention would deprive al Qaeda of that tool. Finally, Americans needed to be reminded that closing Guantánamo held (and still holds) the promise of bringing to justice those who committed heinous crimes -- a crucial point that often seems to get lost in the shuffle.

But instead, the transition team recommended adoption of a different structure: interagency task forces staffed mainly by midlevel bureaucrats who periodically report to the deputy secretary level, where the information would then filter up to the "principals," the cabinet and secretary level, and then, ultimately, to the president. This structure provided the needed worker bees to do what was quintessentially a government job, such as gathering and parsing through the information on the detainees, which (as we had been told by a former military prosecutor) was not simply in one filing cabinet or even one agency but strewn throughout the government.

Unfortunately, it also meant that there were no appointed emissaries to deliver the key messages about Guantánamo; misinformation was already beginning to spread when Obama wrote the executive orders.

Polls in January showed a slim majority of Americans supported closure, but my suspicion then and now is that, for the bulk of the U.S. public, many basic facts concerning Guantánamo were utterly unfamiliar or at best blurry. I have yet to see a reputable survey that shows how many Americans can correctly identify the number of people convicted by the military commissions at Guantánamo since its opening as a detention facility in 2002 (three, including one through a plea bargain) versus international terrorists who have been convicted in the U.S. criminal justice system since 2001 (195). In retrospect, that the case for closing Guantánamo had not been made strongly enough by different sources in January was the first sign of the debacles to come.

Those of us on the outside celebrated the signing of the executive orders on Jan. 22 and then waited, patiently at first and then with increasing nervousness in February and March, over what seemed a lack of movement. As winter turned to spring, this became full-blown alarm. We concluded that either administration officials did not take seriously the timeline of 12 months and/or they were distracted by the numerous other crises (the economy, Iraq, Afghanistan) they had inherited. It was hard to say where the center of gravity was on the bundle of issues related to Guantánamo. No one person seemed to be working this issue full time inside the White House, and nobody was making the case to Congress or the American people.

Weeks went by before the three interagency task forces looking at the Guantánamo detainee files and issues related to detention and interrogation policies were up and running, (again) mainly populated by midlevel government bureaucrats, as one described himself to me, and junior-level political appointees. Worse, many observers noticed that some agencies were sending the very people who had been working these issues for the previous administration. In other words, the slow-rollers were still part of the mix.

BRENNAN LINSLEY/AFP/Getty Images

 

Sarah Mendelson is director of the Human Rights and Security Initiative at the Washington-based Center for Strategic and International Studies.

JOHNBRAGG

12:37 PM ET

October 2, 2009

RE: the crazy assumption that Gitmo alumni will walk US streets

Given that most of them were apprehended and treated under circumstances which do not meet standards of US criminal law, they are one 5-4 Supreme Court decision away from walking our streets.

They are being held under the laws of war which have stated since the days of the Romans that prisoners can be held until the end of a conflict. So they should stay in Guantanamo until the jihad is over.

 

MEKHONGKURT

4:07 PM ET

October 3, 2009

The Roman precedent

Two points about the Roman precedent: while it is part of our distant historical basis of contemporary American law, it was rather different, including in the area of individual civil rights, as I understand it (though I'm not an attorney or legal scholar); and, Roman law (practice, actually, as opposed to formal law) was based on the traditional concept of a war over geography.

The current jihad is not about geography, per se. General McChrystal and others clearly recognize this.

So, the Roman precedent is of limited use as a guideline for just what we should do with the folks in Gitmo.

More immediate precedents are more applicable, especially since they are American precedents in particular. One of the fundamental concepts of this country right from the start is the underlying, two-pronged notion -- become rather quaint of recent years -- that a person is (1.) innocent until proven guilty, even by a military tribunal, and (2.) an accused need not prove his innocence, just cast sufficient doubt on the prosecution's case.

In the case of the prisoners of indeterminate status, I frankly don't know what to do. I worked some years in law enforcement and security, and have a reasonably well-developed sense of what we've traditionally stood for, as do a great many of my fellow Americans. Yet these prisoners raise entirely new questions with no easy, nor even, indeed, evident, answers.

Had the Romans faced such a conundrum, I imagine they would have solved it rather expediently, i.e., by simply putting the pesky prisoners to the sword without any further ceremony or ado.

Were I in President Obama's (and earlier, President Bush's) shoes, I haven't the faintest idea what I would urge, for two reasons. First of all, I'm an ordinary guy with absolutely no access to even the least-classified material, let alone the more tightly-guarded intel, so who am I to second-guess the folks who *are* in the know? Second, as President Clinton recently observed (and as have many of his predecesors), there's no work experience to train one to be a Presiednet: it's a 100% OJT job. How do you get experience having someone with the "nuclear football" never more than a few feet away, for istance?

Candidate Obama was not the first candidate to not fully understand that. I don't fully understand that. I 100% believe it's a case of having had to have "been there, done that" to understand -- which is why the ex-Presidents club is so exclusive. They may hate each other's guts . . . but they understand.

Any decision Obama makes is fraught with danger and uncertainties. Making the waters even murkier is the decision by the AG to consider prosecution of officials in the Bush administration for their handling of Gitmo. That activates a cause-and-effect sequence in a great many people's minds -- a *fallacious* cause-and-effect, but a strong one for all that.

That is to set up this sequence:

(1.) Official A arrested and mistreated Suspect Z.
(2.) Official A committed illegal actions against Suspect Z.
(3.) Ergo, Suspect Z is innocent.

Number (3.)? Wrong answer; it does not arise as the necessary conclusion of (1.) and (2.), much as some plead, "Tell me it ain't so!" that Suspect Z is innocent.

Nor, however, does the fact (if so adjudged by a court) that Official A's actions were illegal mean Suspect Z is innocent, either.

What, if anything, applies? The "fruit of the poisonous tree" theory that came out of the Supreme Court some decades ago? That case involved domestic law enforcement, not international military action. Invoking it lights a firestorm.

Whatever decisions are made and actions taken, I hope first and foremost justice is served and *that the American people see justice as having been served.* Secondly, I hope the rest of the world agrees. But that is second.

I'm plenty glad I'm not required to make any of these grope-in-the-dark decision or take any of these pin-the-tail-on-the-donkey actions. And I pity those who do.

 

JOHNBRAGG

6:55 AM ET

October 4, 2009

War is Different than Criminal Law

I cited the Romans, not because they were the last to agree with my position, but the first. Romans pretty much created our idea of international law, and holding prisoners until the end of the war (unless privately ransomed) has held since then. During the Hundred Years War between Britain and France in the 1300s and 1400s, no one was released because their sentence had expired--they were exchanged or ransomed during periodic truces.

In Northern Ireland, the IRA presents a remotely similar circumstance, in that many IRA prisoners were (are?) held under long sentences issued by "Diplock courts" that would not survive current US Supreme Court review. Most of them were released as part of the peace agreements between the IRA, the British government and the Protestant paramilitaries. In other words, at the end of the conflict.

As recently as the post-World War II trials, the tribunals ruled that a German general who had shot partisans without trial for fighting out of uniform was acting lawfully. (List was convicted for the reprisal killing of hostages). The Geneva Conventions amended the relevant law, but still required partisans to wear a sign recognizable at a distance and follow the laws of war, so the Gitmo boys are still mostly out of luck there.

As for your syllogism, if Official A mistreated Subject Z, under US criminal law Subject Z walks, case dismissed. "Guilty as hell, Free as a bird" as William Ayers would say.

 

KHOQUI

11:48 AM ET

October 5, 2009

Jihadis Are War Fighters

Confusion reigns because Sarah Mendelsohn et. al. keep trying to treat jihadis like criminals rather than the warriors they are.

Ask any jihadi. He is not trying to get away with a crime. He is fighting a holy war for Islam.

This self-identification should be enough to end the dispute. We should treat jihadis as the warriors they say they are. In short, the rules of war, not domestic criminal laws, apply.

Which is to say, even if we want to be generous and allow the jihadis an undeserved status as legal combatants, their treatment is well established by international law. They are to be legally detained until the conclusion of hostilities.