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Sober Assessments and Missed Opportunities on Guantanamo

Interviewee: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law; Former Legal Advisor, Department of State
Interviewer: Greg Bruno, Staff Writer, CFR.org
May 22, 2009

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With opposition mounting, President Obama has laid out his vision for reforming U.S. detention polices and closing the prison camp at Guantanamo Bay. Offering a pointed and public defense, Obama's speech at the National Archives in Washington on May 21 has been interpreted as a balanced, sober, and thoughtful explanation of his proposed plan. CFR's John B. Bellinger III, who served as legal adviser to former Secretary of State Condoleezza Rice, says President Obama "emphasized an approach that's deeply grounded in American values." And yet, Bellinger says Obama opened the door to continued criticism.

Topping the list of contentious issues, he says, is the acknowledgment that indefinite detention of detainees is unavoidable. The president vowed to "work with Congress to develop a legislative framework to provide for what he euphemistically calls 'prolonged detention,' Bellinger says. But the news "is going to be the latest in a series of disappointments for the civil liberty groups--the first was a broad assertion of detention authority, the second was the continuation of military commissions."

In his speech on May 21, President Obama endorsed what might be described as a "grab bag" approach to closing the Guantanamo Bay prison camp and trying terror suspects. He called for the use of federal courts to try detainees, affirmed his desire to use military commissions, and talked about transferring some detainees to U.S. soil. What's different about Obama's approach compared to the previous administration's strategy?

It's certainly a continuation of a number of the policies with some changes. For example, he acknowledged clearly and definitively that the country is at war. He puts that firmly to rest. There's been a debate among some, particularly in the international community but to a lesser extent in the United States, about whether we're at war or not. He clearly said we are at war. That's important in that a variety of legal consequences flow from that, including detention. He said that he'll continue to use the military commissions, and that those are necessary to try individuals who have committed violations of the laws of war--although he is at pains to emphasize that he plans to make changes. He emphasizes that he will continue to detain people who pose a threat to us. He emphasizes clearly and repeatedly and in no uncertain terms that he thinks that there is a threat and that this threat will continue. He also acknowledges ... that this threat poses new challenges to the country and that the institutions may need to be modified in some ways.

"The other glaring omission was no mention, no announcement, that the president was planning to release at least a handful of Uighurs in the United States ... I do think it was a missed opportunity to have explained it here."

On the other hand, what he's done in particular is to emphasize an approach that's deeply grounded in American values. That's really the overall thrust and tone of the speech. In that regard it was an excellent speech: It was balanced, sober, it takes some pointed criticism at the past administration for what he calls hasty decisions and an ad hoc approach. A few of the barbs were a bit unfair and political, but overall the speech was not strident.

One of the key departures is the idea that in closing Guantanamo, some of the detainees will have to be transferred to detention facilities on U.S. soil. We saw members of his own party in the Senate this week refuse to release some of this money for closing the camp, in part due to concern over this very point. Is this the key issue going forward?

The two biggest news items in the speech, which is otherwise mostly a restatement and defense of the decisions that he's already made, are one, his statement that he expects that he'll have to have some form of indefinite detention for those who pose a threat and cannot be prosecuted. That's really the headline in this speech. The president is at least acknowledging the need for indefinite detention, and that he will work with Congress to develop a legislative framework to provide for what he euphemistically calls "prolonged detention." That is going to be the latest in a series of disappointments for the civil liberty groups--the first was a broad assertion of detention authority, the second was the continuation of military commissions.

The speech's other new news, and what people suspected but has not been specifically said, is that some number of people will need to be moved into the United States if Guantanamo is going to be closed. The president reassures people that if they are moved to the United States that they'll be held in very secure facilities. But the president acknowledges explicitly that we are in a war.

The president talked about the legal frameworks needing reform going forward, but didn't really offer many specifics on how he planned to make the reforms. Was that a surprise?

It was a bit of a surprise. The speech is short on details about how he's going to close Guantanamo, particularly on how transfers to other countries are to be made. He does have the two new statements that some people will have to be moved to the United States and that some people may have to be held indefinitely. Two things that I thought were noticeably absent were details on how he is going to accomplish transfers to other countries and any reference to a concern about the human rights concerns of transferring people to their home countries. In general, a number of people will have to be returned to their home countries. Since almost all of the remaining detainees come from countries with at least some question about their human rights records, there will be enormous pressure on this administration from human rights groups not to return individuals to countries like Libya, Tunisia, Algeria, Syria, Egypt, and Saudi Arabia. He's not only short on details about where people are going to be transferred to, he does not even mention the human rights concerns involved. Although a number of European countries have expressed a willingness to consider taking some detainees, and this may happen, I do not think we can expect these countries to take a large number, which means that if we're going to transfer a lot of people out of Guantanamo and not to the United States, then many of them will have to go back to their home countries. This will put big pressure on the Obama administration to negotiate diplomatic assurances.

The other glaring omission--in fact I was really quite surprised--was no mention, no announcement, that the president was planning to release at least a handful of Uighurs in the United States.

Generally that issue has been seen as low-hanging fruit, is that right?

Yes, and the Obama administration knows that it will be impossible to get European countries to accept any detainees for resettlement unless the United States accepts some for resettlement inside the United States. The low-hanging fruit for resettlement are the Uighurs. It's been rumored for several weeks and several congressmen have even mentioned that they've been briefed about prospective resettlement. This would have been the opportunity for the president to announce to the American people that he had made the hard decision that some number of Uighurs would be resettled in the United States. We should still expect that announcement soon, but I do think it was a missed opportunity to have explained it here. He talks a lot about assuring the American people that no dangerous detainees will be released in the United States, and that would have been a place to fit this in.

I wonder if the rising opposition in Congress played into his decision not to announce this.

I would have to guess that's the reason--this is still coming and he would have liked to announce it, but he was not yet there with respect to the briefings in Congress. Part of this is that the administration is not as far along as they'd like to be in the Guantanamo review and the Guantanamo transfer discussions. There's a cryptic reference in the speech that fifty individuals had been approved for release, and it's hard to tell whether that's new news or old news, because at the end of the Bush administration, sixty had been approved for release and we had not been able to find places to send them. This may simply mean that in rereviewing the 240 [inmates still held] in Guantanamo, they've only gotten through approving fifty of the sixty that had been previously approved, rather than fifty on top of the sixty who had already been approved.

How significant do you think this week of political opposition has been as a setback for the president? Does it portend that the January 2010 deadline--the timeframe Obama has set for closure of the camp--will be impossible to meet?

No, I think he'll still get it done. I'm a little surprised about the intensity of this initial skirmishing over whether and how these detainees will be resettled inside the United States rather than what I fully expect will be a huge bloody battle over the legal framework for detention that President Obama has signaled he plans to seek from Congress. That second part will be a huge battle sometime in the fall. The fact that even Democrats have rebelled over the closing of Guantanamo does not bode well for that debate later on. I expect that once the president puts more flesh on the bones of the plan to close Guantanamo and provides more details, the Democrats will fall in line and will be able to push this through. It'll be messy, and Republicans will continue to kick up a fuss, but at the end of the day I would be surprised if the president is not able to close Guantanamo within a year.

Did anything else surprise you in the president's choice of words or legal reasoning?

"It'll be messy, and Republicans will continue to kick up a fuss, but at the end of the day I would be surprised if the president is not able to close Guantanamo within a year."

One thing that surprised me was his statement that if federal courts could be used to try Moussaoui [Zacarias Moussaoui, identified as the twentieth†9/11 hijacker], then that demonstrates that they can be used to try Guantanamo detainees. I think that's false logic. Moussaoui was arrested by the FBI [Federal Bureau of Investigation] in the United States. His actions all took place in the United States. The witnesses and evidence for his crimes were in the United States. The offenses he committed were territorial to the United States. It's much different to attempt to try in a federal court an individual who has been captured by the military outside of the United States, where their offenses took place outside as well.

So you saw this as just a bit of legal smoke and mirrors?

He felt compelled to provide an endorsement of the value of federal courts, which is indisputable. Federal courts certainly should be used for individuals who are arrested inside the United States. The Bush administration rightly gave up with the failed experiment of trying to try individuals detained inside the United States, but it does not follow that because you can try someone like Moussaoui that you can just as easily try individuals captured by U.S. soldiers outside the United States.

Beyond the federal courts question, did the president help clarify detention policies for declared war versus non-declared war? What happens to prisoners captured today, for instance? Any new clarification there?

Not much. The only hint that we have is that he believes we continue to be in a war. If that's true, then it would follow as a matter of logic that we would continue to detain individuals captured outside the United States under the laws of war. The Obama administration already said this in its brief to Judge [John D.] Bates in the District of Columbia, which he upheld in a decision earlier this week with some modifications. But the president generally did not address the issues of detention of individuals captured in Iraq or Afghanistan or elsewhere.

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