Much of the national security community’s attention is understandably fixated these days on Russia and China. But on the counterterrorism side of things, this month marked 20 years since the United States first began using facilities at the Guantanamo Bay Naval Station (GTMO) to house terrorism detainees under authorities granted by the 2001 Authorization for the Use of Military Force (AUMF). That law, passed days after the September 11, 2001 terrorist attacks, allows the President to “use all necessary and appropriate force” against al-Qaeda and the Taliban. (There are also strong arguments that the President has inherent authority to do so through his Article II powers.)
Following September 11, the nation was united in its response to terrorism. But for a variety of reasons, both real and imagined, in the years that followed GTMO became a political football that, for many, came to symbolize either rash reactions and abuses, or the challenges inherent to the global, multigenerational nature of the fight against modern international terrorism. Two decades in, sound policymaking on the future of detention at GTMO – as long, or short as it may be – requires a realistic approach that accounts for human and fiscal costs, potential national security benefits, and domestic and international political landscapes, while respecting – not undermining – the state of the law and scope of authorities that unambiguously permit the United States to continue to detain the men still there.
On January 11, the date marking GTMO’s fraught 20th anniversary, I published a brief piece elsewhere noting the rather straightforward and sound legal footing for continued terrorist detention at GTMO, including that:
- The law of war allows nations to neutralize opposing forces;
- The Supreme Court has long recognized that “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war”; and
- Congress “affirm[ed]” the AUMF allows detention “under the law of war without trial until the end of hostilities” in Section 1021 of the 2012 National Defense Authorization Act.
Law of War detention is not criminal punishment, but rather a way of neutralizing a military threat (the alternative being lethal action). As long as the fight is ongoing, the law of war’s presumption is that the detained individual, if released, could rejoin the opposing force and become a threat once again. Indeed, with respect to former GTMO detainees, published reengagement statistics show exactly that.
It is notable that even Senator Dianne Feinstein’s post for the Lawfare Blog on GTMO’s anniversary called for its closure by questioning its propriety, not its legality. Even so, Senator Feinstein’s piece got several things wrong. First, GTMO detention is not “last vestige of the war in Afghanistan.” Instead, it is a creature of the fight against al-Qaeda, which postdated that group’s attacks against the United States in 1993, 1998, 2000, and, of course 2001. It is an element of a war that, according to both Congress and the President, remains ongoing. President Biden very clearly stated in his Afghanistan withdrawal speech that the United States will continue to “hunt [terrorists] down to the ends of the Earth.” Given the United States’ continuing military role in worldwide counterterrorism operations, without doing the work to develop a politically-sound detention policy, the only available options to neutralize terrorist threats are exercising law enforcement powers which, though increasingly common, is not always feasible, or using lethal force.
Senator Feinstein also says “the military commission process has largely been a failure” – hardly a debatable proposition, except that GTMO military commissions are convened under a 2009 statute that Congress has long had the ability to fix. And indeed, there have been several proposals to reform the system, including and especially by fixing the runaway “apparent unlawful influence” doctrine that has derailed DoD’s own attempts to fix well-recognized systemic problems.
But the biggest problem with Senator Feinstein’s post is that her proposed solutions to “shutting the doors” ultimately depend on a) the detainees’ home countries’ willingness to repatriate them, and b) the presumption that those transfers will adequately mitigate whatever threat they may continue to pose. In the process, she effectively ignores the persistent underlying challenges (and, with respect to certain detainees, unfeasibility) of each of those necessary preconditions to closure.
There are many legitimate reasons to criticize, be uncomfortable with, or downright oppose the terrorist detention program at GTMO. There are certainly fiscal, political, moral, and practical considerations to weigh: it’s expensive; it’s a political point of contention domestically and internationally; twenty years is an objectively lengthy time to be detained (even if, for some, it is not long enough); and the composition of federal courts has shifted such that judges are much more willing to ‘look under the hood’ of national security programs than a generation ago, to the point of sometimes dishonestly reading their own precedents to find rights for detainees well beyond the Suspension Clause, which the Supreme Court found applied to GTMO detainees in Boumediene.
There is nothing profound in any of the above observations. And yet, sixteen years after President Bush first publicly suggested closing the facility, a workable solution remains elusive, partly because the U.S. has been its own worst enemy on GTMO for much of its history. Putting aside for a moment, if we can, problematic detainee treatment policies from the facility’s early years, as I wrote in an article published in 2016 (backed by data analysis):
the United States has talked, or perhaps campaigned itself, into a bigger Guantanamo public relations problem than had actually existed in the late 2000s. A metaphorical arms race between Senators McCain [and] Obama to assure the American electorate that they would close GTMO, followed by President Obama’s poor expectation management over his actual ability to close it and find an acceptable alternative, brought GTMO back to the fore and kept it there. The facility went from being a problematic, ongoing, but nevertheless singular mark on American history, to a renewed symbol of political and leadership failure.
That self-defeating trend of regularly failing to articulate and/or defend the bases of controversial national security programs continues. In December, for example, the Senate Judiciary Committee held a hearing hyperbolically titled “Closing Guantanamo: Ending 20 Years of Injustice.” However one defines “injustice,” it is unambiguously true that GTMO detainees have been afforded more legal process than any other wartime captives in human history. Granted, that is related, in-part, to the length of their detention. But it is also evident that the United States did not exactly lock the detainees up, throw away the key, and forget about them – even most of those few originally sent to “black sites” have been charged in largely public military commissions.
As Jack Goldsmith wrote years ago in The Terror Presidency, all aspects of the war on terrorism had been “lawyered to death.” That emphasis on legal process has only continued, with the full engagement of all three branches of government and a robust, skilled, and dedicated detainee bar. Whether the detainees have human rights equities that do or should outweigh other factors is a fairly debatable proposition, both legally and as a policy matter. But it is more than a little chutzpahdik for a Congressional body to suggest that a program it has, in fact, supported both in policy and by purse for two decades, was unjust from the outset.
Demonizing GTMO clearly has not helped to resolve the problems associated with it. Rather, doing so has more often led to unhelpful generalizations and unnuanced blanket calls to “close GTMO” that have made constructive dialogue about detention rather difficult to come by. Even Senator Feinstein’s Lawfare piece, despite its seemingly moderate tone, was fairly dogmatic. Citing her longtime support for closing the facility, she entirely leaves out her cogent, grounded first impression of the place, well before the multimillion dollar, state of the art facilities were built: “I would rather be in an 8-by-8 cell with a (tropical) breeze than to be locked down at Folsom Prison.”
Indeed, the fact is that the facilities at GTMO have long been modeled after U.S. prisons, adapted for the law of war detention context. In that light, it is perhaps better to stop thinking about what GTMO’s checkered history might say about us and refocus on why the remaining detainees were sent there, why they are still there, and why no other country has been able to credibly step up to accept their transfer and prevent their reengagement. To that last point, postulating as Senator Feinstein does that, “Regarding the concerns of host countries that don’t want their citizens back, perhaps the notion that the United States is finally closing Guantanamo as part of the deal would move them to act,” seems to suggest a rather backwards approach to national security policymaking.
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