Not much to see here: Secretary of Defense Donald Rumsfeld on a tour of Camp X-Ray at the U.S. Naval Base in Guantánamo Bay, Cuba in 2002. Photo courtesy U.S. Marine Corps/Sgt. Joshua S. Higgins

MEMORANDUM

To: Donald Rumsfeld, Secretary of Defense
      Sen. John Warner; Chair, Senate Armed Services Committee
      Rep. Duncan Hunter; Chair, House Armed Services Committee

From: Phillip Carter

Re: Shutting down Guantánamo Bay: A Roadmap

It’s not hard to see the damage that the Guantánamo Bay detention facility in Cuba is doing to the American war effort. Whatever the reality, the perception is that we are doing bad things there, and that perception is eroding U.S. support and credibility. In this type of warfare, seizing the moral high ground is as important as seizing key terrain, and the United States cannot afford this damage much longer.

The most extreme criticisms of Guantánamo—that it has become a modern-day gulag, with egregious acts of torture practiced there at your direction—exaggerate matters greatly and ignore the legitimate and legal imperative to harvest intelligence. On the other hand, there have been significant abuses documented there. Perhaps more important for those who justify the facility on grounds of necessity, the U.S. intelligence community does not seem to have gotten much bang for its buck. Most reports paint an underwhelming portrait of the detainee population, thanks largely to decisions to hold the most sensitive al Qaeda detainees at secretive facilities elsewhere. In the final analysis, it appears that the United States is running a facility that costs a great deal and provides very little.

Outlined below are several policy recommendations for navigating the ambiguities in the war on terror and placing U.S. detention policy on firmer ground than Guantánamo Bay:

Get Congress off the Sidelines: The Constitution envisions power sharing in times of war. As commander in chief, the president (working through the secretary of defense and others) must wield his executive power to hunt down, interdict, arrest, or kill the nation’s enemies. Further, the president must direct the interrogation of those captured, consistent with the laws of war, and gather intelligence to prevent another attack. But congress has constitutional responsibilities as well, including to “make Rules concerning Captures on Land and Water” and “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” If the United States faces a new kind of threat from global terror networks such as al Qaeda, then congress must create the legal architecture to address it. As chair of the House and Senate Armed Services Committees respectively, you must take the lead. Further, if the administration is far-sighted, it should welcome congressional involvement, both because it is better to have congress engaged than sniping from the side, and because the Supreme Court is more likely to endorse presidential power when it has congressional authorization.

Clarify the President’s War Power: The current authorization for the use of military force was introduced in the Senate a mere 72 hours after the Sept.11, 2001, attacks, with the Pentagon still smoldering across the Potomac. It contains broad, sweeping language of the sort one would expect at such an uncertain moment in American history. The predictable result has been litigation over its exact meaning, particularly in the area of detention. The Bush administration has argued that the law authorizes all wartime measures, including the detention of foreigners and U.S. citizens captured on foreign and domestic battlefields as unlawful enemy combatants, without charges or process, for the duration of hostilities. (In June 2004, the Supreme Court circumscribed this power with its Hamdi v. Rumsfeld decision, but the exact contours of that decision remain uncertain.) Congress should act now, with the benefit of four years of hindsight, to define and limit the president’s power in the war on terrorism. Ambiguity begets abuse, and we now know enough about the nature of the war to start making wise, detailed policy choices.

Determine Who’s Who: Four years after September 11, the U.S. government still lacks an effective and principled system for deciding who’s an enemy combatant, who’s a criminal, and who falls into a gray area between the two. Groups opposing the United States purposefully blur these boundaries by hiding among the civilian population, a time-honored insurgent strategy. That strategy is working. More than one year after the Abu Ghraib scandal broke, interrogators and lawyers in Iraq still report extensive confusion about the legal status of detainees and the appropriateness of certain legal and interrogation procedures.

Congress must develop a taxonomy of terrorism to sort out detainees in a way that makes operational and legal sense. Definitions should not hinge on the wearing of uniforms or other anachronistic criteria. You cannot create categories that will apply cleanly to every case, but you can make the sorting process more transparent and add a measure of justice and legitimacy to a system sorely lacking in both.