Where do we go after the death of Osama bin Laden? Some commentators have optimistically pronounced the beginning of the end of the conflict with al-Qaeda. Others warn that the movement’s decentralized character may render the elimination of its leader less of a blow than it would be for a more traditional organization.
How matters proceed from here will turn on a range of critical decisions in the White House, including how and when to start drawing down troops in Afghanistan, whether and how to negotiate with the Taliban, and how to manage the explosive politics of our relations with Pakistan. But the future course of the conflict will turn just as critically on whether President Obama takes advantage of his newfound support to reinforce the principle he set out at the beginning of his administration—namely, that the struggle against terrorism can and must be fought without sacrificing the fundamental values of the rule of law.
Already, his critics are pointing to bin Laden’s death as proof that torture works, and advocating that he resurrect the CIA’s “enhanced interrogation techniques.” And Congress is considering several bills that would make it impossible to close the prison at Guantánamo Bay, and would also expand the power to detain terror suspects without charge while reducing procedural safeguards designed to limit wrongful imprisonment. Obama showed strong leadership in ordering the operation to capture or kill bin Laden. Now he must demonstrate equal conviction in defining how we proceed in the next stage of winding down the war on terror.
Dick Cheney, John Yoo, and Jose Rodriguez, all of whom were directly involved in authorizing and implementing the CIA’s torture tactics, have rushed to claim credit for bin Laden’s death. They maintain that some of the links in the four-year “mosaic” of evidence that ultimately led to his discovery reportedly came from CIA detainees after they were subjected to waterboarding or other coercive tactics. Proof of causation is sorely lacking, however; the reported record actually suggests that both Khalid Sheikh Mohammed and Abu Faraj al-Libi, who were subjected to such tactics, misled interrogators about the identity of bin Laden’s courier, and that neither provided any information about couriers in response to the brutal treatment inflicted upon them. (Defense Secretary Donald Rumsfeld conceded this, although the next day he reverted, as The New York Times put it, to “talking points about the virtues of prisoner abuse.”)
Most importantly, of course, torture is absolutely forbidden as a legal matter because it is absolutely wrong as a moral matter, not because it never causes a tortured person to provide useful information. An impressive list of former national security officials, including retired Army and Marine generals, has called on President Obama to reaffirm that torture is “illegal, immoral and un-American.”1 In fact, he should do more; we will never move beyond the “torture debate” until there is some form of official accountability for the torture we inflicted on others. As I have previously argued, at a minimum a national commission of inquiry is necessary.
But torture is not the only thing we must reckon with as we continue the struggle against al-Qaeda. Having eliminated the group’s leader and most inspiring symbol, we persist in providing it a major source of inspiration in the form of the prison camp at Guantánamo Bay. The end of the “war on terror” will require President Obama to solve the challenge that is Guantánamo.
A week before bin Laden’s death, the national news was dominated by WikiLeaks’ release of hundreds of US intelligence assessments of the alleged risks posed by each of the prisoners at Guantánamo Bay. Lost in the focus on WikiLeaks, however, was an even more revealing story in The Washington Post, detailing how President Obama has thus far failed to close Guantánamo.2 That story portrayed a president who at virtually every critical stage chose not to fight for what he said he believed in, and instead bowed to political pressure that left America’s values and safety compromised. If he is to build on his victory in killing bin Laden, President Obama needs to stand firm on Guantánamo and oppose Congress’s short-sighted and dangerous proposals.
The details of the military intelligence assessments released by WikiLeaks tell far more about the shoddy quality of our intelligence work than about the detainees themselves. They confirm what has long been known. All too many detainees were taken into custody in the “fog of war” on the basis of unsupported assertions of Afghani or Pakistani citizens eager to claim bounties that amounted to a year’s salary. As the WikiLeaks documents showed, the military did little to substantiate claims that the arrested men were enemies and frequently presumed guilt on the basis of patently inadequate evidence.
The intelligence assessments often rest on statements by persons, like Khalid Sheikh Mohammed and Mohammed al-Qahtani, who the government has conceded were subjected to waterboarding or other forms of torture. Military prosecutors abandoned efforts to prosecute al-Qahtani, even though he was said to be the would-be twentieth hijacker on September 11, because they concluded that he had been tortured. Yet the military’s intelligence analysts relied on al-Qahtani’s coerced statements to implicate sixteen other Guantánamo detainees, without any acknowledgment that his information might have been unreliable.
If nothing else, the WikiLeaks files reinforce the pressing need for meaningful oversight and, in particular, judicial review of detentions in the conflict in Afghanistan. The Bush administration assumed that the men it captured would have no access to legal protections or courts, and therefore it had little incentive to make sure that it had sound evidence to support its actions. As so often happens when oversight is lacking, mistakes followed, as innocent men were wrongly detained for years, and dangerous men were released to engage in further terrorist attacks.
Virtually everyone who has had to deal with the international conse- quences of Guantánamo—including George W. Bush, Condoleezza Rice, Robert Gates, and Barack Obama—agrees that the United States would be better off if the prison were closed. Yet despite spirited support for this position from some legislators, including Senators Carl Levin, Patrick Leahy, and Dick Durbin, most members of Congress, preferring to pander to short-term domestic fears among their constituents about housing terrorists on American soil, have done everything they can to keep Guantánamo open. Congress has repeatedly attached riders to military appropriations bills that forbid the spending of any funds to transfer Guantánamo detainees to the United States, whether to put them on trial in civilian courts or as a way of closing the island prison.
The several bills now being seriously considered by Congress would not only make such restrictions permanent, but would also expand the government’s authority to detain terrorism suspects without charge, weaken existing administrative and court review processes, and widen the scope of the “war on terror” to include any “associated forces” that the President unilaterally designates. The bills have been introduced by Senators John McCain and Lindsey Graham and Congressman Buck McKeon, and there is a real risk that one of them could reach a vote. If that happens, only strong leadership from President Obama, including a veto if necessary, would defeat it.
Each bill has fundamental problems. Senator Graham’s bill would permit indefinite, possibly lifelong detention based on nothing more than a finding of “probable cause” that the prisoner belongs to the Taliban, al-Qaeda, or unidentified “associated forces.” Probable cause is the standard used throughout the US to justify routine searches and seizures. Surely it should take more to lock up a human being for life than it does to search an automobile.
Graham’s bill also engages in needless and ill-advised micromanagement of the judicial process of habeas corpus, by which Guantánamo detentions are currently reviewed. For example, it would mandate a presumption—which is said to be open to rebuttal—that even a single night at a Taliban or al-Qaeda “guesthouse” establishes that a person is detainable for life as an “unprivileged belligerent,” without any proof that he belonged to the Taliban or al-Qaeda, much less that he ever carried a weapon or engaged in military activities. Such factual issues are best decided on a case-by-case basis by courts, not by general presumptions mandated by Congress in the absence of any evidence.
Senator McCain’s bill would authorize indefinite preventive detention of anyone—citizen or noncitizen—who has “purposefully and materially supported hostilities against the United States or its coalition partners,” regardless of whether or not the suspect belongs to al-Qaeda or the Taliban, the two organizations with which the US is actually engaged in armed conflict. McCain would also authorize detention of mere members of al-Qaeda or the Taliban, even if they never engaged in armed conflict against the US.
Congressman McKeon’s bill prohibits detainees from being represented by attorneys in proceedings designed to determine whether they should be locked up indefinitely. It also prohibits transfer of any detainee to another country unless that country first agrees to conditions that few if any countries would ever accept. The country must commit in advance to share with the United States all information it has relating to the individual, “any association of the individual,” or information that “could affect the security of the United States, its citizens, or its allies.” The bill makes no effort to define these open-ended terms, rendering it virtually certain that no country would agree to them.
Both McKeon’s and McCain’s bills would also impose permanent restrictions on transferring Guantánamo detainees to US soil, even for civilian criminal trial. All three bills, moreover, would give the President unilateral authority to expand the existing “authorization to use military force,” which is now limited to measures against those responsible for the September 11 attack and those who harbored them. In giving the President power to wage war against unidentified “associated forces,” the bills’ authors may have in mind groups like al-Qaeda in the Arabian Peninsula, which sprang up after September 11. But instead of identifying the enemy, they have delegated to the President the power to define the scope of the war, a responsibility the Constitution committed to Congress.
In short, far from repudiating the practices at Guantánamo that have led to so many mistakes, ruined so many lives, and caused so much anti-American hostility around the world, Congress is poised to reaffirm and expand those practices—even as the WikiLeaks documents underscore just how tainted our actions at Guantánamo have long been, and even as bin Laden’s death offers a real opportunity for lasting progress toward ending this conflict.
Will the Obama administration fight the new legislative proposals? As The Washington Post showed, the administration’s track record has been disappointing. The White House backed down on a plan to transfer to the United States several Guantánamo detainees who the military and courts alike agreed posed no threat, when a single congressman, Frank Wolf of Virginia, objected to their relocation into his district. The Justice Department rescinded its plan to try Khalid Sheikh Mohammed in civilian court in New York City when politicians there, who had initially supported the idea, reversed themselves. Attorney General Eric Holder recently announced that Mohammed will be tried in the military commissions, which selectively deny to foreign nationals the defense rights we afford to all US citizens.
The White House also put up little resistance when Congress recently tied its hands by barring spending on closing Guantánamo or trying detainees in civilian criminal court. Yet The Washington Post reports that the one time the administration did vigorously oppose such a proposal, when Senator Lindsey Graham in the fall of 2009 sought to bar trying Khalid Sheikh Mohammed in civilian court, the administration succeeded in defeating the proposal by a vote of 55–45. So it can win, but only if it is willing to fight.
In May 2009, in his only speech as president on national security, Obama made a stirring case for the critical importance of preserving America’s fundamental values as it opposes the threat of terrorism. He proclaimed that “I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.” Continuing, he explained:
We uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset—in war and peace; in times of ease and in eras of upheaval.
More specifically, Obama argued that closing Guantánamo, banning torture, and trying terrorists in civilian courts where possible were essential to preserving these values. Yet nearly every time Congress has sought to interfere with those goals since then, Obama has backed down, letting Congress get away with undermining our security and our values. Some will say that even if he had fought, he could not have won on these issues—that was almost certainly Rahm Emanuel’s calculation. But you never know until you try. And the administration’s success in defeating Senator Graham’s bill in 2009 suggests that such an effort is by no means quixotic. Most importantly, the President’s obligation is to take a stand in support of what he says he believes “with every fiber of his being,” and not to accept pollsters’ predictions as an inevitable reality. That, after all, is what leadership is all about. That is what we elected him for. It is time for President Obama to stand and fight.
—May 11, 2011