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Guantánamo After Bin Laden

David Cole
Some commentators have optimistically pronounced the killing of Osama bin Laden the beginning of the end of our conflict with al-Qaeda. But having eliminated al-Qaeda’s most inspiring symbol, we persist in offering the group an alternative source of inspiration: the prison camp at Guantánamo Bay.

Brennan Linsley/AP Photo

A shackled detainee being transported inside Guantanamo Bay prison, December 6, 2006

Some commentators have optimistically pronounced the killing of Osama bin Laden the beginning of the end of our conflict with al-Qaeda. But having eliminated al-Qaeda’s most inspiring symbol, we persist in offering the group an alternative source of inspiration: the prison camp at Guantánamo Bay. If there is to be an end to the “war on terror,” Obama will have to be equally resolute about that challenge, as several influential conservative members of Congress are now trying to keep the prison going indefinitely. Obama’s national security credentials have never been higher; but will he use that newfound authority to oppose this ill-advised legislation?

Virtually everyone who has had to deal with the international consequences of Guantánamo—including George W. Bush, Condoleezza Rice, Robert Gates, and Barack Obama—agrees that the United States would be better off if it were closed. Some members of Congress, including Carl Levin, Patrick Leahy, and Dick Durbin, share that assessment, which has only been strengthened by the recent WikiLeaks documents showing just how tainted our practices at Guantánamo have been. Yet most legislators appear to prefer to pander to short-term domestic fears about housing alleged terrorists on American soil and Congress has passed several short–term measures to keep the prison open.

Now, Senators John McCain and Lindsay Graham, and Congressman Buck McKeon, chair of the House Armed Services Committee, have introduced bills that would make those restrictions permanent. Still worse, they would expand the government’s authority to detain indefinitely without charge, while short- circuiting legal procedures designed to ensure that we detain only those who pose the greatest risk. There is a real possibility that one of these bills could reach a vote, possibly as a rider to a military spending bill. Indeed, on May 9, Congressman McKeon sought to attach a version of his bill to H.R. 1540, the National Defense Authorization Act, so the issue has been joined. Only strong leadership from President Obama, including potentially a veto, will defeat these measures.

Each bill has multiple problems. Senator Graham’s bill would permit indefinite, possibly life-long 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. 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. 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 a person should be locked up indefinitely. It also prohibits transfer of any detainee to another country unless that country first agrees to impossibly stringent conditions: 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 create permanent restrictions on transferring Guantánamo detainees to US soil, even for civilian criminal trial. And all three bills appear to expand the existing “authorization to use military force,” which currently applies only against those responsible for the September 11 attack and those who harbored them. The bills would declare a state of armed conflict not only with al Qaeda and the Taliban, but with unidentified “associated forces” or “affiliated groups.” None of the bills defines these terms; McKeon’s bill would authorize the president to designate “associated forces,” without any criteria. 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, the bills effectively delegate 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 much anti-American hostility around the world, Congress is poised to reaffirm those practices—even after the WikiLeaks revelations, 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 in a recent article, the administration’s track record on Guantanamo has been disappointing. The White House backed down on a plan to transfer several Guantánamo detainees who the military and courts alike agreed posed no threat to the United States, 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 flawed military commissions—despite the administration’s own determination, before it realized the extent of political opposition, that a civilian trial would be the better forum.

The White House also put up almost no fight when Congress recently tied its hands by barring spending on closing Guantánamo or trying detainees in civilian criminal court. Yet the Post reports that the one time the administration did 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 a May 2009 speech on national security, Obama made a stirring case for the critical importance of preserving America’s fundamental values as it seeks to counter 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.” He went on:

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, trying terrorists in civilian courts where possible, and respecting basic principles of fundamental fairness in proceedings to review detentions 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 stood his ground, he could not have won on these issues—that was almost certainly Rahm Emmanuel’s calculation.

But you never know until you try. And the administration’s success in defeating Senator Graham’s bill in 2009 suggests that the 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 take a stand.

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