The Long And Winding Road To Closing Gitmo

Max Fisher tackles the notion that Obama can or should use the executive powers he flexed in the Bergdahl deal as an end-run around Congress to shutter Gitmo. The debate, which the Dish has covered here and here, hinges on how we categorize the facility’s 149 remaining detainees:

If the US categorizes them strictly as combatants in a war, then while that gives the US authority to hold them for the duration of war, the United States’ war in Afghanistan is legally ending in 2014, which means Obama would legally have to release most or all detainees at that time. It would also mean that he’d need to try them in a military tribunal to have detained them in the first place, which in many cases he did not do for lack of admissible evidence. But if the US categorizes the detainees as terrorists, while that gives the US legal license to hold them far beyond 2014, the US would need to convict them in a civilian courtroom first.

So why can’t the president exploit that ambiguity to release the rest of the detainees, like he did with the five we traded for Bergdahl? One reason is the question of where they would go:

The US cannot legally take these detainees, most of whom are not Afghan nationals, and simply drop them off by the side of a random road in Kabul, like a family pet that bit the baby. So the Obama administration has to try to find a third country that will accept them. This is why, for example, it wrangled Bermuda into accepting a handful of Chinese detainees whom China had refused to take back.

Were Obama to declare all of the Gitmo detainees to be legal enemy combatants, he would make these problems harder to solve, not easier.

It’s one thing for the US State Department to call up the Bermudan foreign ministry and ask them to accept some Chinese detainees whom the US insists are harmless; it’s quite another to ask Bermuda to accept people whom we legally designate as active fighters in an ongoing war. Even if Obama decided it were worth the risk to jump dump the entire population of Guantanamo into the Taliban’s hands, it’s not at all clear that even the Taliban would accept the detainees, not all of whom fought with the group.

Drum’s takeaway from Fisher’s analysis is that “Obama is not going to close Guantanamo,” ever:

The legal loophole he used in the Bergdahl prisoner exchange—no matter what you think of it—flatly wouldn’t apply to shutting down the entire prison. Plus there’s the fact that Congress would go ballistic if he tried—including plenty of Democrats. Impeachment would go from a fever dream of the tea-party right to a very realistic bipartisan possibility.

Finally, there’s frankly never been much evidence that Obama cares all that much. He’d obviously like to shut down Guantanamo, but he just doesn’t feel that strongly about it.

So give it up. Guantanamo will be here through the end of Obama’s presidency, and quite possibly until its last prisoner dies. It’s fanciful to think anything else.

But Matt Welch insists that Obama can and should do his darnedest to shut it down:

When it comes to terrorism, apples-to-apples rates of recidivism may not be possible—all it takes is one murderous nutbag to kill scores of people, the “worst of the worst” are probably going to be worse than the first ones released, and it’s important to be clear-eyed about the risk here. But one risk that rarely gets mentioned by War on Terror hawks is the (to my mind) equal certainty that other people around the world will be inspired by the existence of America’s Kafkaesque prison to commit murder against Americans. Put another way, we will be able to “see” acts of terrorism committed by those who are sprung from Gitmo, but the “unseen” acts of terror that are partly motivated by the U.S. conducting itself as a superpower above the law are no less real.

It’s a messed-up paradox, and one of Republicans‘ making. Maybe next time we’ll think a bit more through the problem of snatching and torturing people and then realizing that such treatment makes them damnably hard to stand even military tribunals.

Frank Goldsmith – a lawyer who has represented five detainees, including one of the Taliban members traded for Bergdahl – stresses how few of these “terrorists” have ever been successfully charged with crimes:

In the cases of the Guantánamo detainees, we lawyers cannot discuss the specific facts publicly, because we were required to trade our free speech for access to the classified evidence necessary to represent our clients. But it is telling that after over a dozen years of detention, the government has managed to charge, try, and convict only a handful – fewer than ten – of the 779 men it brought to the base.

Five were convicted of minor charges (some that were not even crimes at the time of their detention) and have been released. One of the convictions was overturned on appeal; other appeals remain pending. This is not a record of ringing prosecutorial success. Of the five men I represented, including the Taliban political official just sent to Qatar, none was ever charged with even the most minor crime; they were simply held for years without charges until it pleased the government to send them back. Where is the evidence that they are terrorists?

About half of the 149 men still left at Guantánamo have long been determined not to be a threat and have been approved for transfer; the only impediments to their release are political.

Here’s my fear: that 2009 represented the high watermark for closing this obscenity down. A newly-elected president had a clear mandate to do it and yet the Congress simply vetoed it, with strong public support. Blaming Obama for that seems absurd to me. The sad truth is that Americans are perfectly fine with detaining innocent people indefinitely, if they have beards and funny names, and have no interest in sustaining democratic norms if it means one life lost to terrorism. The whole edifice of Western justice went out the window with one terror attack and because one major political party, the GOP, is only too willing to use this fear for political dividends, it will not be put back together again. We will, in fact, be lucky if a future Republican president doesn’t restore torture as a legal form of statecraft.

Does this lead me to despair? Well, not far off. We have learned a lot about this country these past few years. Gitmo – a torture and detention camp outside any norms of Western justice – is now a symbol of America across the world. It is our 21st Century city on a hill. It is, in many ways, an emblem of the death of America as an ideal. And one political party made that happen.