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Obama's Guantanamo Shift

Interviewee: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy, Associate Professor of law at Columbia Law School
Interviewer: Jonathan Masters, Associate Staff Writer, CFR.org
March 10, 2011

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In his 2008 campaign for president, Barack Obama vowed to close (CBS) the U.S. detention facility at Guantanamo Bay, Cuba, within one year of his election. Two years later, the Obama White House is still trying to reconcile this promise with the imperatives of national security and the political realities of a new Congress. In March 2011, President Obama issued an executive order eliminating the two-year ban on military tribunals and establishing formal procedures for the review of cases in which detainees are being held indefinitely without trial. Matthew Waxman, a CFR expert on law and foreign policy and associate professor of law at Columbia Law School, says that while Obama remains committed to closing the facility in the long term, the new procedures put in place by the executive order suggest that "Guantanamo will be open for a long time." He notes that while some critics lament the new policy as "institutionalizing" long-term detention, others will welcome it for providing improved oversight and transparency.

What is the significance of the president's executive order?

The executive order and accompanying announcements this week from the White House accomplish a set of things with regard to detention policy at Guantanamo and more broadly. First, they set up a review process for Guantanamo detainees who are going to be held for the long term. Second, they restart military commissions to prosecute some detainees for war crimes while declaring an intention to use a wide range of other legal options for addressing the cases of individual detainees. And finally, the White House declared the government's intention to adhere to and support more specific international legal standards with regard to captured detainees in armed conflict.

Are these periodic reviews sort of like parole hearings in layman's terms?

That's a good way to think about it, because these periodic reviews are not designed to test the legality of detention. They're designed to test whether or not, as a policy matter, the government should continue to hold an individual. And here's part of the problem. The U.S. government argues, and really all three branches of the government have come to accept this view, that the United States can capture and hold enemy al-Qaeda and allied fighters for the duration of the war with al-Qaeda. But everybody recognizes that this war is likely to go on for a very long time and is unlikely to come to any sort of definitive conclusion the way that a conventional war between nation-states might--at which time you'd have an exchange of prisoners and so forth. So, detainees who are held validly at Guantanamo could end up being detained there for a very long time, possibly for the duration of their lives. What these new review processes are designed to do is address that issue, and say that even when somebody is found to be legally detainable, the government should continue to review their detention on a periodic basis. These reviews can decide whether there is an imperative need to hold that individual or whether that person could be safely released or transferred to another country.

The White House is arguing that from a national security perspective, maintaining some flexibility, maintaining a diverse arsenal of legal tools, is the right way to go.

What are those assessments based on? For instance, under what circumstances would the government decide that it's no longer in the best interests of the United States to hold a particular prisoner at Guantanamo?

Part of it has to do with where you set the appropriate threshold. The detainees at Guantanamo pose a wide range of risks or threats. And at some point, the government needs to decide what kinds of threats warrant long-term detention of an individual. Among the types of factors that might be relevant are what steps a home country or a third country would or are able to take in order to mitigate the continuing threat that an individual might pose. So for example, we have agreements with other countries where they pledge to monitor the movements of released detainees--or perhaps, try to reintegrate them into society. Now, of course, those kinds of transfers entail some risks. But there are also risks to continuing to hold the detainees indefinitely. There are no truly risk-free options in the Guantanamo challenge.

President Obama pledged to close the Guantanamo detention facility in his election campaign. Where does this order put that pledge?

The Obama administration continues to hold fast to its pledge to close Guantanamo, and claims they are not backing off of that promise. At the same time though, I think the administration's actions suggest resignation to the fact that Guantanamo will be open for a long time. The procedures and review process that are now being set up at Guantanamo are being done with the expectation that the facility will be open for the foreseeable future. I think the political reality is that it won't be closed anytime soon and the administration, therefore, needs to take steps to improve the facility's operations.

Some critics have cast this as a reversal of Obama's policy on Guantanamo. Is that fair?

I would not categorize it as a full reversal as much as an evolution in order to deal with new political realities. Amid severe obstacles to closing the facility, the Obama administration is having to adjust course and take the necessary steps to put detention policy and practice on stronger footing to deal with the detainees that remain within its custody. The White House still seems to cling to the long-term ambition of closing Guantanamo. But in the meantime, it needs to ensure that current policy and practice are effective.

Given this new order, how does Obama's Guantanamo policy compare with that of Bush?

There certainly are some aspects of the Bush policy that the Obama administration has embraced, including the very idea that some al-Qaeda and affiliated fighters can be captured and held for the long term pursuant to the laws of war. At the same time, Obama is taking steps to put in place more robust procedural protections and review processes, and this executive order is one example of that. The administration also bases its Guantanamo detention authority on acts of Congress as opposed to unilateral executive authorities, and it accepts as legally binding more international treatment standards for the care, custody, and interrogation of detainees.

What are the primary factors that you think led to this decision?

One of the issues the Obama administration is emphasizing is its desire to maintain a wide range of legal options for handling individual detainee cases. In some cases, they believe that civilian criminal trials are the right approach, while in others, they believe military commissions are best. In some cases, they think continued detention without trial is the right approach, and in others, they believe detainee transfer or release is more appropriate. The White House is arguing, and I think they're right, that from a national security perspective, maintaining some flexibility, maintaining a diverse arsenal of legal tools, is the right way to go.

So you endorse the resumption of military commissions?

Restarting military commissions, on the one hand, gives them an additional legal option for handling some detainees. And certainly, there are wide segments of the Congress that support the use of military commissions. However, I'm skeptical that military commissions are likely to be as successful a tool as proponents claim. Most likely, I think they will only be useful in a subset of cases at Guantanamo, and to date there have been some problems with these commissions--even though I think the rules of military commissions are compliant with international trial standards. I think the very idea of military commissions for suspected terrorists is viewed by many audiences at home and abroad as illegitimate. There's often an assumption that military commissions will be tougher, or more likely to convict and deliver harsher sentencing on terrorism suspects than civilian trials. I'm not sure that's true, and so far the evidence does not bear that out. Also, when terrorism cases have been brought by prosecutors to civilian courts, they have been quite effective in handling the many challenges that come up.

Counterterrorism work relies very heavily on intelligence--information from a variety of sources that the United States collects or that we share with allies. Often this intelligence information does not make good courtroom evidence.

This executive order applies to some 48 of the 172 detainees, particular the cases with so-called "evidentiary problems" that preclude prosecution in either civilian courts or military tribunals. What are these evidentiary problems?

One of the biggest problems is that some detainees were captured on or near a battlefield in which evidence was not collected and preserved in such a way that would make it useful in a civilian trial, using the federal rules of evidence and standard civilian trial processes. Also, counterterrorism work relies very heavily on intelligence--information from a variety of sources that the United States collects or that we share with allies. Often this intelligence information does not make good courtroom evidence. So these detainees are being held because the government has high confidence that they were fighting on behalf of al-Qaeda or its allies [and] that they were engaging in belligerency against the United States. Many of those cases are now being tested in court, not as a matter of criminal trials to assess guilt, but through habeas corpus hearings to verify that the government has sufficient information to support that conclusion.

Where does this development leave the trial of Khalid Sheikh Muhammad?

Nobody really knows. The government hasn't declared its intentions on the KSM trial--and it's not just KSM but also his major 9/11 co-conspirators. There are three possible options there. There's a civilian trial, there's military commission, or there's continued detention without trial. And as of now, the default position is to continue holding him without trial. However, there are many people both inside and outside the government who very much want to see a criminal trial of some sort for KSM and his co-conspirators. But as of now, the government seems to have backed off their initial intention of bringing him to civilian trial, and it is not clear when a decision on that is going to be made.

Is the policy of indefinite detention practical? Is it sustainable in the long term?

Well, one thing that the administration is trying to do with this executive order is putting long-term detention on a stronger foundation. They are putting in place more robust review processes and better oversight by making the process more transparent. To some critics of Guantanamo this is a blessing, but to others this makes the problem worse because it seems to be institutionalizing the policy of long-term detention.

If you're advising the president, what steps would you recommend he take for achieving the goal of closing this down in the long term?

I don't see a viable pathway to closing Guantanamo anytime soon because of the politics attached to the issue. You can't do it without the support of Congress, and as of now Congress is lined up in opposition. You can take steps to prepare for its closure one day, such as reducing the detainee population. But in the meantime, in the foreseeable future, Guantanamo is likely to stay open.

The administration has made the argument that Guantanamo's continued operation hurts us from a national security perspective because it causes friction with allies and it provides a propaganda argument for extremists. At the same time, though, the administration has not taken all the steps a White House normally would in pursuing a national security imperative. You don't see the administration sending the national security advisor or the secretary of defense or other senior national security officials out in the public eye to really hammer home the case that closing the facility is a national security imperative.

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