The Obama Administration announced today that it will move one hundred Guantanamo Bay detainees to a prison in rural Illinois. This move is considered a step forward in Obama’s campaign promise to shutdown the Gitmo facility. By doing so, however, Obama is skipping a critical step in this process—the creation of a long-term detainment framework that will keep Americans safe and hold terrorists accountable.
The benefits of the Guantanamo Bay facility arguably outweigh the costs in terms of price, security, and location. While undoubtedly the Bureau of Prisons could handle the security risks associated with these detainees, FBI Director Robert Mueller has emphasized that moving these detainees to the U.S. undoubtedly brings security risks. It is, however, within the President’s prerogative as Commander-in-Chief to make a decision as to where to prosecute these national security detainees. Obama’s preference was expressed during his presidential campaign when he promised that he would close down the Gitmo facility and put place in substantial oversight aimed at remedying what he perceived as Bush era abuses.
Today marks a step in this process. However, this decision puts the cart before the horse, leaving out a significant step in a responsible transition out of Guantanamo Bay. First, there are a number of legal authorities that specifically prohibit putting these detainees on U.S. soil. Second, and most importantly, this decision skips over the development of a framework for dealing with future detainees in the long run. Simply moving terrorists out of Gitmo and inside the United States does not end the issues associated with detainment. For instance, once inside the United States, what rights will be afforded to detainees, what authorities will be in place to ensure their prolonged detainment, what will happen if they are ordered release, and what if these individuals are not apprehended on the battlefield of Afghanistan?
These are all concerns that are currently left unanswered under the present framework. As Heritage Foundation’s Cully Stimson phrased it, “closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the zip code without confronting the broader challenges.” And if history is guide, absent guidance from the legislative or executive branch, inaction by Obama essentially punts these issues to the judiciary, where activist judges could degrade this valuable national security tool.
What Obama should have done first is get specific congressional authorization for a prolonged detention—this is in line with his promise to make America’s image stronger in the world. However, moving forward on closing Gitmo without a legal and workable detention policy in place weakens U.S. detention policy, and puts the courts in the driving seat of America’s national security.
The Washington Post reports:
The Obama administration has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects and will instead rely on a 2001 congressional resolution authorizing military force against al-Qaeda and the Taliban to continue to detain people indefinitely and without charge, according to administration officials.
…
The administration’s decision avoids a potentially rancorous debate that could alienate key allies at a time when President Obama needs congressional and public support… The administration has concluded that its detention powers, as currently accepted by the federal courts, are adequate to the task of holding some Guantanamo Bay detainees indefinitely.
There is strong bi-partisan recognition that U.S. detention policy must be placed on a legally sustainable long-term footing. At Brookings Senior Fellow for Governance Studies Ben Witttes has written a A Model Law for Terrorist Incapacitation while Heritage’s Senior Legal Fellow Cully Stimson has long called for a durable legal detention framework.
During the campaign, then-candidate Barack Obama often criticized President Bush for “going it alone” and just this past May, President Obama promised: “I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.”
The Obama administration’s decision not to seek congressional authorization for military detention exposes a lack of political courage to stare down the extremists in his own party and do the right thing for American security. This is the ultimate flip-flop and will have dangerous consequences for our national security. As Commander in Chief, the President does have the legal authority to detain the enemy during wartime, especially considering the broadly-worded congressionally-approved Authorization for Use of Military Force, in place since 2001.. However, given the courts’ micromanaging of virtually every aspect of detention policy, this decision not to seek a congressional statute will result in continued unnecessary litigation.
More importantly, this decision cedes to the courts the ultimate decision of whom to detain, and whom to release, and will result in most Guantanamo detainees being released by federal judges - the administration’s goal all along.