Briefing Book

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.

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.

The executive orders on Guantánamo had identified, as our report had suggested, diplomacy as central to the closure effort. Nearly two months after the inauguration, in mid-March, the special diplomatic envoy was finally announced: Ambassador Daniel Fried, a career Foreign Service officer. Then, through various unrelated congressional snafus, his appointment was held up until mid-May, nearly four months after the inauguration and smack in the middle of the Obama administration's losing battle on this issue in Congress. For one critical leg of the process, the release and transfer aspect, the calendar had suddenly, incredibly, shrunk from 12 months to eight.

The most serious damage to the president's efforts to close Guantánamo seems to have begun in mid-April. The White House had agreed to have the Justice Department release the Bush administration's Office of Legal Counsel (OLC) memos concerning CIA interrogation techniques, in compliance with a Freedom of Information Act suit brought by the American Civil Liberties Union. These documents from 2002 and 2005 are sprinkled with bizarre, deeply disturbing details, including instructions on what sort of insects (nonpoisonous) could be placed in a coffin-like box with a detainee. Along with the leak in March of the 2006 International Committee of the Red Cross report to journalist Mark Danner, the OLC memos offered yet more detail of what the Bush administration had authorized, and the case against torture seemed to be (again) building.

But the OLC release had one major unintended consequence: It seemed to singularly enrage and embolden former Vice President Dick Cheney, who took to the airwaves like an angry preacher of fear. Home alone and spurred on by the former vice president, many in Congress spun a steady stream of stories gobbled up eagerly even by mainstream news media about how the Guantánamo detainees were infinitely more dangerous than the convicted killers or the international terrorists held in U.S. prisons and that the U.S. justice system simply could not handle them.

The perfect political storm seemed to be brewing. For the first time that anyone could remember, a former vice president was constantly on television railing against the new administration; the improbable revival of military commissions had occurred; and members of Congress were running for cover like children in a rainstorm or spewing falsehoods on the floor of the House and Senate. Meanwhile, there was radio silence from the White House. Apparently, according to a colleague with close contacts in Congress, when pressed by a Senate staffer on the NIMBY issue ("not in my back yard," the crazy assumption that Obama was going to let the Guantánamo prisoners out to roam free in small towns across America), the White House responded: "NIMBY: not our problem."

To make matters worse, the administration was rather breezily asking for an $80 million supplemental for Guantánamo-related costs. This request suggested the Obama administration was considering finding one facility to hold everyone from Guantánamo -- something that our working group had considered and rejected because the pretrial detention facilities associated with the relevant courts could do the job.

On the evening of May 20, I ran into a progressive member of Congress who had just come from the 90-6 vote in the Senate on the administration's $80 million request. I was not surprised he had voted with the majority because simply on the merits, it seemed not to make sense. But when this member of Congress said to me, "Well, our courts cannot handle these cases," I felt panic rising. How could a member of Congress not know of the 195 international terrorists convicted since 2001?

Ultimately the president had to go on the defensive, delivering his first (and only) major address on the issue the next day, May 21, from the National Archives. (Not to be outdone, the former vice president spoke at almost the same time on the same issue from the corridors of the American Enterprise Institute.) Even then, however, the president missed a critical moment to explain to the American public that the U.S. justice system, as imperfect as it is, had already successfully handled nearly 200 international terrorist convictions. His speech quieted the public denouncements, but for those who follow the issue, the speech was confusing and distressing, even surreal, mixing legal systems and outcomes. For example, instead of two categories (release/transfer and try), he identified five, including military commissions and what he referred to as "prolonged detention," or detention without charge.

Two basic unknowable assumptions had driven a lot of my group's work on Guantánamo: 1) the United States' overseas allies would help, and 2) we couldn't count on public and congressional support. The last was clearly an understatement. We also assumed that these two factors were negatively linked: If officials refused to release any detainees into the United States, we thought others would be unlikely to help and the mission to close Guantánamo would be doomed.

Luckily, we were wrong. Yes, by early June, the battle over whether any Guantánamo detainees (read: the Uighurs) would be released into the United States had been lost. Astoundingly, however, Dan Fried's new job, begun only on May 15, had not turned into mission impossible. By late June, Fried, together with able and interested European counterparts, forged in record time a general agreement allowing for all European Union countries to independently decide whether they would help. In fact, in the four months since Fried has been on the job, through a combination of his skill and the desire of others well beyond Europe to help the Obama administration, many countries have overlooked U.S. missteps and mistakes. That has meant that the 75 or so detainees who are slotted for release and transfer are likely to find homes. Among the many countries that have either stated they intend to receive people or have already taken detainees include: Portugal, France, Britain, Spain, Germany, Ireland, Palau, Bermuda, Romania, Bulgaria, Hungary, Lithuania, Estonia, Latvia, Georgia, and Croatia.

The summer went, in fact, relatively smoothly. Reports and contacts suggested that the Guantánamo review process was proceeding apace. The interrogation task force issued a press release concerning the need to build a cohort of professional interrogators who could be deployed at a moment's notice and trained in noncoercive methods, something we had also suggested in our report. Also by September, the struggle to seek legislation for a national security court had been defeated by those who, like us, considered that plan another major step toward institutionalizing detention without charge inside the United States.

Ultimately, this effort has always been, to a certain extent, a numbers game. How one gets to zero is ultimately how closing Guantánamo will be judged. The review of the 223 detainees still being held at Guantánamo has not been completed but is said to break down into approximately 75 for release or transfer, 40 for prosecution, and approximately 110 who, depending on whom you talk to, include detainees yet to be sorted into either category; a group of mostly Yemenis that the government, led by National Security Council counterterrorism advisor John Brennan, hopes to transfer to Saudi Arabia; and/or, most ominously, a group of indeterminate size that the government cannot release, transfer, or try.

The important question then becomes not whether the administration makes its deadline, but after all is said and done, will it emerge with a third group that it says can neither be released nor prosecuted, as the Washington Post reported last week? If so, under what authority will it seek to detain these individuals? Will they argue that they have the authority, the same authority that the Bush administration claimed that so many of us railed against, to hold these people indefinitely under the 2001 bill that authorized the use of military force in Afghanistan?

If Obama is going to shift U.S. counterterrorism policies concerning detention away from the damaging Bush approach, he and his team need to put to rest the radical notion that there are people who cannot be prosecuted but who are too dangerous to release. It needs to be clear that this concept is distinctly un-American, that American legal practice is based on entirely different principles, and that the United States has fought existential wars to uphold these principles. The so-called third category is precisely what the annual State Department global reports on human rights have so roundly and accurately criticized in countries such as Russia, Iran, and China. The U.S. departures from these principles over the last eight years have in fact enabled authoritarian regimes around the world and left human rights defenders isolated. When foreign audiences applaud Obama's statements about closing Guantánamo, it is this very reversal -- this paradigm shift -- they are endorsing.

As we look to the next four months, learning the right lessons from the last eight becomes especially critical. Most importantly, the timeline was not the problem. A year of steady work is what it likely will take. The administration got off to a fast start with the president's signature, but this effort had barely gotten off the ground by March, let alone May. The administration should continue now to do everything it can to make the January deadline. If it continues to make progress and push, seeking a 60- or even 90-day extension should not be seen as a failure, but as working the year-long calendar set by the president.

The administration also needs to solve what we in the CSIS working group found to be the hardest issue of all: Who is it in the U.S. interest to detain, and what authority does the United States have to detain them? The detention task force will provide some response to these questions, but many who have met with this group -- including esteemed lawyers and retired intelligence officers -- expect inside-the-box bureaucratic answers instead of bold or creative solutions.

Therefore, the administration needs to do this fall what it failed to do last spring: It needs to gather wise counsel and mobilize it to make the case to the American people, especially as it presents its "plan" for closure, as demanded by Congress. It is hard to see how the sort of eminent Americans we had in mind when we recommended the blue-ribbon panel will take the time to work on this very difficult issue absent a direct request from the president, though Human Rights First convened a distinguished group of retired generals and admirals this week on Capitol Hill and with various senior administration officials. The president also needs sage outside advice that combines foreign policy, security, intelligence, legal, and human rights experience to complement the recommendations he receives up the bureaucratic chain. Ideally, these individuals need to be of such stature that they will speak freely and even contradict one another in the presence of the president.

More important and difficult, the administration ought to divert resources to amassing evidence on the most difficult detainee cases as soon as possible. By all accounts, it seems that there might be a few dozen -- maybe 50 at the most, maybe as few as 30 -- for whom both prosecution and release seem equally unappetizing. The administration ought to deploy teams of experienced prosecutors and FBI agents into the field to work the evidence. If, after this overseas exploration, the teams determine that there is no evidence of a crime and that the government cannot prosecute, then the teams need to recommend that these people be released. Ultimately, it will be Obama's decision to do so, and here he needs to show the quality of leadership that got him elected. The problem will then move to Dan Fried's able office to solve, together with other countries. Based on the last few months, there seem to be as many people outside the United States invested in closing Guantánamo as there are inside. That alone gives me hope that this can all get done the right way and in 2010.


Briefing Book

More Than Just a Photo-Op

Barack Obama's handshake meeting with Mahmoud Abbas and Benjamin Netanyahu is not getting nearly the credit it deserves. In fact, Obama's Mideast peace strategy is far more sophisticated than most observers realize.

Headlines are now being prepared following U.S. President Barack Obama's convening of a trilateral Israeli-Palestinian-American peace summit today in New York. Many will seek to belittle the president's efforts thus far. The summit was being dismissed as a photo-op before it even happened.

The right, in the United States and in Israel, will spin this meeting as further proof of the young president's foreign policy naïveté. Prioritizing Israeli-Palestinian conflict resolution, creating expectations in the Arab world, and publicly disagreeing with Israel, on settlements for instance, are all exhibits in the right's case against the new administration (Steven Rosen here on provided a boiler-plate incantation of this hawkish line).

The spin from the left, in the United States and in the Arab world, is just as predictable. The president blinked on settlements when Israel said boo, the Palestinians have been thrown under a bus, and the U.S. is pursuing more of the same failed incrementalist policies.

In large measure, both of these views are wrong. The contours of a strategic methodical Obama approach to achieving the comprehensive Mideast peace of which he speaks are starting to become visible.

The way in which today's trilateral was announced is in itself instructive. Special Envoy George Mitchell was getting played by the parties last week as they tried to leverage America's desire to see the three-way meeting take place. Sometimes that is the lot of an envoy. It is also an advantage of having an envoy, allowing the president to step in, cut to the chase, and simply announce where and when the parties were expected to report for a meeting with him. The Americans decided that this week's news cycle would not be dominated by the vagaries of Middle Eastern leaders' mood swings or the potentially embarrassing ‘will they-won't they' speculation about an Abbas-Netanyahu meet. Obama decided. The trilateral happened. It's over on Tuesday, now move on to climate change and nonproliferation.

While some on the Israeli side (with many Arab commentators agreeing) will be portraying this as an Israeli win, with Obama weakened and Abbas squaring up to a large helping of humble pie, I think that's a misreading of the current state of play.

Let's take the issue that has received most attention - settlements. Analysts will jump on the fact that a meaningful settlement freeze has not been achieved and that President Obama called today to "restrain" such activity, a seeming climb-down from his previous statements. While it is certainly true that some of the newfound Middle Eastern goodwill toward the U.S. has been squandered by the American inability to deliver a freeze and a price has been paid in America's standing and credibility, something else has also been happening that is likely to prove more significant over time.

By holding Israel's feet to the fire over settlements for a sustained period, America may actually have achieved a great deal in strategically advancing the two-state goal. The most significant effect may be this: Israeli Prime Minister Benjamin Netanyahu's preferred approach was to focus on interim issues and confidence-building measures (CBMs) and to avoid negotiating the core issues (territories, settlements, Jerusalem, etc.) on which his positions are the most unreasonable. In particular, Netanyahu has attempted to advance an economic peace agenda, with his supporters feverishly spinning the idea that the West Bank is becoming an economic paradise. The Obama team has staked out a clear position - items number 1, 2, 3, 4, and 5 on the interim/CBM agenda are entitled "settlement freeze." They have been giving short shrift, including today, to the economic peace narrative (they acknowledge the desirability of progress on the economy and freedom of movement, and should even congratulate themselves that the partial progress made is mainly a result of the heat Israel feels on settlements).

The result: The settlement freeze focus has made Netanyahu's natural comfort zone -- the interim/CBM world -- a prohibitively uncomfortable place to inhabit. So paradoxically, it is Netanyahu who now feels compelled to embrace and prefer negotiations on permanent status end-game issues. That is no small achievement.

In addition, the most right-wing government in Israel's history is, in practical terms, limiting its pro-settlements proclivities, and a tantalizing pivot has been established: namely, that having failed to reach acceptable arrangements on a settlements freeze, the best and obvious alternative is to proceed now to delineate borders. In other words, the territory -- the border component of the two-state deal -- becomes the default solution to what the Americans have established, possibly in a premeditated way, as the never-ending settlement freeze saga.

The cherry on the icing emerged today when the president notably and crucially failed to give a formal blessing to continued construction in East Jerusalem and in almost 3,000 settlement units as an "agreed exemption clause." By not providing this kosher stamp, by calling for restraint, actions not just words, America (just) retained its credibility on the settlements issue. So the settlements focus can best be understood as an important exercise in setting down a marker, even though it is also an important issue in its own right.

This is also the best way to understand the Mitchell team's several months' worth of investment in obtaining Arab gestures toward early normalization with Israel. The point here was not necessarily the immediate deliverables, which may be meager, but rather to create an expectation. This administration is serious about comprehensive peace, and the Arab states will need to be serious about making good on their full normalization pledge, which is part of the Arab Peace Initiative. Mitchell has begun to seriously have that conversation and to get people's heads in the Arab world around the idea of what normalization really means.

What we have been witnessing thus far, including today, has been a table-setting exercise. President Obama's message today continued to emphasize key themes -- the urgency of achieving a two-state solution, his personal engagement and commitment, and why this is an American national interest. Starting on day one, as Obama did, rather than in year seven as his predecessor did, has its advantages. It allows one to invest several months and even to reach an impasse in order to make a point. I would argue that this administration is determinedly and inexorably moving this process toward a moment of truth that may take another several months or more to arrive, but arrive it will.

The straw-man argument that a focus on CBMs and economic peace can substitute for end-game negotiations has been defenestrated. A settlement freeze will continue to be pursued but will now be delinked from these permanent status negotiations, which will be launched in parallel, and the Palestinians will be walked back from their preconditions. Israelis and Palestinians will be brought together to negotiate directly but with an ongoing American presence and guiding hand.

More than that, in fact, one can expect the existing modus operandi to continue, with most of the serious talks and negotiations taking place on three parallel axes of dialogue: American-Israeli, American-Palestinian, and American-Arab states. Most of that will be via the continuous shuttling of Mitchell and his team, with Secretary of State Hillary Clinton (who is more keenly involved in Middle East peace efforts than is often acknowledged) and President Obama being deployed as and when necessary.

Over time, one imagines that those key issues that have been addressed only tentatively thus far, or that have even remained taboo, will also be taken on. Syria, for instance, will at the appropriate moment need to shift from the orbit of hesitantly engaged outlier, to being a centerpiece in a comprehensive peace effort. A way will also need to be found to deal with the Hamas "untouchables." Ultimately, that might mean an indirect engagement via a consortium of regional and other actors (such as the Saudis, Qataris, Turks, and others, including but not exclusively Egypt) or by actively encouraging and accepting internal Palestinian political reconciliation.

If there is indeed a strategy here, and I at least think one can be discerned, then it is heading towards the presentation and active promotion, at the appropriate moment, of an American plan for implementing a comprehensive peace. America will have to recognize that it is dealing on the Israeli and Palestinian sides, for all their differences, with two deeply dysfunctional polities. The parties simply cannot do this of their own volition, and this is too important for them and for America for it to be left to the mercy of the vicissitudes of their respective domestic politics. America will have to create the incentives and also the disincentives.

It is not a question of wanting this more or less than the parties themselves. It is about who is best placed to carry this effort over the finishing line -- and only determined American leadership with international support can achieve that. Senator Mitchell frequently talks about his 700 days of frustration in Northern Ireland and one day of decisive, break-through success.

Today's trilateral may register on the frustrating side of the ledger, but President Obama has set off on a path that can lead to that one game-changing day of peace-making. Given the urgency, as acknowledged again by the president today, let's hope he dramatically trims down that 700 number.

Photo by John Angelillo-Pool/Getty Images