The Obama administration entered office with high hopes of closing the controversial Guantanamo Bay prison facility, releasing or transferring most of the detainees, and detaining and prosecuting the rest under federal criminal laws. Fifteen months later, President Barack Obama has made incremental progress toward these goals, but has mostly become mired in the same detainee quicksand as his predecessor. Attorney General Eric Holder will undoubtedly be grilled by Senate Republicans about the administration's goals, and its decisions, on detainees during his appearance before the Senate Judiciary Committee on April 14.
Guantanamo has not closed and is unlikely to be closed anytime soon; detainee-related litigation is choking the federal courts and consuming the attention of hundreds of government lawyers; the administration has announced plans to hold at least fifty Guantanamo detainees indefinitely without trial (and has suspended indefinitely the return of another thirty detainees to Yemen); human rights groups and the international community are growing impatient with the lack of progress and are raising questions about the roughly five hundred detainees held at Bagram Air Base in Afghanistan; and an increasingly polarized Congress is considering legislation to require all terror suspects to be detained, interrogated, and prosecuted in the military system. The 2010 midterm election year for Congress will lead to further politicization of detention issues and make the administration's efforts more difficult.
Sound Decisions, Poor Execution
Obama's January 2009 directive to close Guantanamo and Attorney General Eric Holder's November 2009 decision to prosecute Khalid Sheikh Mohammed and other 9/11 planners in federal court were--on balance and despite powerful arguments to the contrary--sound policy decisions. Unfortunately, neither decision was well-implemented by the administration, which failed to foresee the fierce domestic political opposition that both actions would stir up and therefore did not shore up the necessary political support in Congress and in New York. That large majorities of the Democratic-controlled Congress voted within months to prohibit the use of appropriated funds to close Guantanamo demonstrates just how badly the White House misjudged the domestic political attitude toward Guantanamo.
[The Obama administration] should stick with its decision to use federal courts for the 9/11 masterminds, while continuing to rely on military commissions for less complex trials of Taliban or al-Qaeda members suspected of war crimes.
Although the president missed his self-imposed one-year deadline to close Guantanamo, his administration has made significant progress in reducing that prison's population by transferring close to sixty detainees to other countries for prosecution or release. The Bush administration had previously transferred more than five hundred detainees out of Guantanamo (for which it received little credit in the international community), but almost all of these transfers were to the detainees' countries of origin. Through unflagging diplomatic efforts, Special Envoy Daniel Fried has been able to capitalize on the popularity of the Obama administration to cajole more than a dozen countries (including ten previously reluctant European allies) to resettle thirty-one detainees not from those countries and has repatriated more than twenty-five others.
Most European governments, while strident in their criticism of Guantanamo, had done nothing to help close the prison during the Bush administration, because they blamed Bush for creating the prison and refused to acknowledge that they were actually benefiting from the U.S. detention of Mohammed and other al-Qaeda members.
The Obama administration entered office expecting to shut down military commissions and to prosecute all terror suspects suspected of crimes in federal courts. But the administration realized within months that not all detainees could be prosecuted in federal courts, not (as critics of military commissions are fond of saying) because the detainees had previously been abused, but rather because many detainees had committed war crimes but not federal crimes.
The administration, therefore, has acted prudently in announcing that it will prosecute some detainees in federal court and some in military commissions. Although the administration backed off its plan to prosecute the 9/11 planners in federal court in New York, it should stick with its decision to use federal courts for the 9/11 masterminds (either in another, more easily securable city, or even on a military base, if necessary), while continuing to rely on military commissions for less complex trials of Taliban or al-Qaeda members suspected of war crimes.
GOP's Misplaced Zeal for Military Tribunals
It is ironic that congressional Republicans are pushing hard, and have introduced legislation, to have all terror suspects prosecuted in military commissions. The Republicans' zeal for military trials is based on the faulty premise that the military system will deal with al-Qaeda and Taliban members more harshly than the federal system.
But the opposite is more likely true. Military judges have no experience with large and complex prosecutions and have an incentive to try to prove to the world that military commissions are not kangaroo courts; the rulings by military judges in commission proceedings so far have all been remarkably pro-defendant. Advocates of military commissions should remember that a military commission acquitted bin Laden's body guard, Salim Hamdan, of conspiracy to commit terrorism and sentenced him to only six more months than the time he had already served in Guantanamo.
In contrast, many federal judges have significant experience in handling complex terrorism cases, and they will have an incentive to prove they can decisively control a terrorism case, rather than allow a media spectacle. Military commission supporters also forget that, under the Military Commissions Act passed by Congress, all military commission convictions will be reviewed by federal judges, and ultimately by the U.S. Supreme Court; so all prosecutions, whether federal or military, will end up in federal court in any event.
In addition to prosecutions, the Obama administration is also struggling with the appropriate legal framework to use for detention of terror suspects. Civil liberties groups and European governments had denounced the Bush administration's "Global War on Terror" paradigm and urged the Obama administration to detain only those individuals who could be charged with a federal crime. Obama has dropped the "Global War" label (a good decision, in my view), but has continued to assert--to the consternation of human rights groups and many U.S. allies--that the United States is in a war with al-Qaeda, that the war is taking place in various places around the globe, and that Washington is therefore justified in detaining members of al-Qaeda and the Taliban without trial under the laws of war.
Clarifying Law on Detentions
The administration has failed, however, to clarify both the domestic law and international law rules under which al-Qaeda and Taliban suspects are being held in Guantanamo and Bagram. As a matter of domestic law, the administration claims that it has the right to detain suspected terrorists under the September 2001 "Authorization to Use Military Force" Act (AUMF).
Although the government continues to hold detainees in Guantanamo and Bagram under the laws of war, it has not concluded that they are entitled to be treated as prisoners of war under the Third Geneva Convention or as civilian "Protected Persons" under the Fourth Geneva Convention.
The AUMF authorizes the president to use "necessary and appropriate force" against those who planned or committed the 9/11 attacks, or harbored those who did. Although the AUMF does not mention detention specifically, its authorization of the use of "force" clearly includes authority to detain certain al-Qaeda and Taliban members responsible for committing or harboring those who committed the 9/11 attacks. But the AUMF does not provide any guidance regarding specifically who may be detained, how long they may be detained, or what review process should be used to determine who may be detained. Nor is it clear that the AUMF authorizes detention of members of al-Qaeda or the Taliban who were not responsible for 9/11 (such as individuals who may have only been youths in 2001).
Senator Lindsey Graham (R-SC) is reportedly working on a bill that would provide clearer legislative authority for detention and better guidance to the federal judges who are hearing detainee habeas petitions. But civil liberties groups and their supporters in Congress have strongly opposed any new legislation to provide additional detention authority. The administration should have sought a new detention statute in 2009. It will be much harder to obtain new legislation during an election year. Nevertheless, the administration should continue to work with Graham and others to enact clearer detention legislation that specifies who may be detained and appropriate review procedures.
The administration has also done nothing to clarify the international law under which al-Qaeda and Taliban detainees are held. Obama has received worldwide acclaim for reaffirming the U.S. "commitment" to the Geneva Conventions. But his position is actually no different than the Bush administration during its second term.
Although the government continues to hold detainees in Guantanamo and Bagram under the laws of war, it has not concluded that they are entitled to be treated as prisoners of war under the Third Geneva Convention or as civilian "protected persons" under the Fourth Geneva Convention. And after more than eight years of "review," the executive branch still has not even been able to agree to apply Article 75 of the First Protocol to the Geneva Conventions, which sets forth certain minimum standards of treatments for detained persons who do not qualify for more comprehensive protections under the Third or Fourth Geneva Conventions. If the administration is going to continue to hold detainees under the laws of war, it should announce that it will apply the minimum protections of Article 75.
Overall, during the last fifteen months, there has been more continuity than change between the detention policies of the Bush administration and the Obama administration. The administration shifted course in important ways, but its momentum is slowing. It should resist politicization of detention issues by both Democrats and Republicans during this election year. It should continue efforts to close Guantanamo and prosecute terror suspects in both federal courts and military commissions as well as to clarify both the domestic and international laws applicable to detention.