November 20, 2008
On Sept. 6, 2006, President Bush did two odd things: First, he divulged something that the Washington Post had uncovered nearly a year before -- that the United States maintained secret facilities (so-called black sites) to hold an undetermined number of terrorism suspects. He announced that he would be sending these suspects, including Al Qaeda mastermind Khalid Sheikh Mohammed, to Guantanamo Bay. Yet in virtually the next breath, he said, "And we will move toward the day when we can eventually close the detention facility at Guantanamo Bay." I would hardly call this a ringing endorsement of closing Gitmo.
That said, some of the administration's recent efforts will make closure easier. For instance, the State Department has negotiated -- on the Pentagon's green light -- repatriations and third-country transfers of Gitmo detainees deemed eligible for release, to the point where about 250 people are held there now, down from a peak of more than 500 detainees. The Pentagon says that 60 detainees are eligible for release, subject to the State Department's diplomatic negotiations. Thus, we are talking about a pool of about 200 detainees whose fate will be determined by the next administration, much better than the several hundred at Gitmo in years past.
Beyond the continuation of efforts to release detainees, there are four things President Bush should do:
* Put a hold on all military commission proceedings. Trials are scheduled for January, but they are at odds with President-elect Barack Obama's vision of how we prosecute terrorism suspects. Their continuation limits the options available for closure.
* Ensure that all material pertaining to each detainee is readily available to Obama's transition officials so the process of categorizing detainees is done efficiently, quickly and fairly. This is no small task, as it involves pulling together all material, in different media, that may have been collected in the process of detainee reviews or by other military, intelligence and law enforcement agencies.
* Collect all government memorandums, reports and orders pertaining to interrogation and detention policy and practice, including confidential reports of the International Committee of the Red Cross. To close Gitmo, the new administration will need a fully transparent window into how the prison developed since its opening in 2002 and how the government treated detainees. While Gitmo has been a failed policy on many levels, there are likely many things the new administration can learn from those failures -- and from the occasional successes -- about how to construct an appropriate detention and interrogation system.
* Finally, the Bush administration should pave the way for a different discourse about Gitmo. A nice way to move forward would be for senior Bush officials to move away from the canard that Gitmo only contains "the worst of the worst" and acknowledge the failures and wrongful detentions that have characterized the prison for so long. Such a statement could go a long way toward moving the closure discussion to a less partisan, more fact-based place.
David Kaye, a former State Department staff lawyer with responsibility for the law of war, is executive director of the UCLA School of Law's international human rights program.
David, the 9/11 attacks ushered in a new and unanticipated era of warfare. Less than nine months into his administration, Bush was confronted with the harsh realities of 21st century armed conflict. He faced an enemy who had declared war on the United States and the West, did not wear a uniform, was not a signatory to the Geneva Conventions and did not represent any nation-state (in this case, citizens from more than 40 countries comprised the combatants). In fact, our enemy systematically violated the law of armed conflict as part of its official doctrine. The Bush administration sought to shift U.S. strategy against international terrorism from a law enforcement problem to a warfare scenario. It opted to use military commissions as the best means to hold and adjudicate Al Qaeda fighters.
The law enforcement approach to fighting terrorism was deemed a manifest failure by the bipartisan 9/11 Commission. As we agreed Wednesday, it is clear that the warfare approach has been unsuccessful as well. Bush as well as key members of his Cabinet have stated their desire to close the Guantanamo Bay detention facility. David, you write that the president's statement in 2006 that he wanted to close Gitmo was odd. I see his statement as showing the reality of a president who is keenly aware of the problems at Gitmo but is struggling to figure out what to do once the facility is actually closed.
President Bush can best assist his successor by providing clear guidance on the status of Gitmo and the 250 detainees remaining there, providing thorough intelligence briefings from his staff and providing access to all information on the detentions and pending cases before the military commissions. Additional key points the president should address on Guantanamo include:
Military commissions: As you suggest, David, it is clear that no military commission proceedings should be docketed for after Jan. 20. However, Bush should not discontinue the existing docketed trials set to begin in early January. Once in office, Obama will not be able to immediately close Gitmo. To think he would, or could, is naive. As much as he might like to do so, I believe he will pursue a pragmatic, deliberate approach to closing the much maligned facility and wait until his full national security team is in place. After that, and perhaps after a bipartisan commission issues recommendations on what to do after we close Gitmo, he will properly shut down the military commissions process at Gitmo with alacrity.
Bagram, Afghanistan: Bush needs to inform the Obama team on the specifics of the numbers, places, and plans for the many detainees held outside Gitmo. The new team needs to be fully briefed on what the intentions have been for those held at the Bagram detention facility in Afghanistan, where the next "Gitmo" is brewing.
Law enforcement paradigm: Bush should caution the Obama administration to avoid returning to the pre-9/11 mentality in confronting the threat from Al Qaeda and like-minded terrorists. The 9/11 Commission stressed the importance of not retreating to the failed counter-terrorism law enforcement policies of the past.
Beyond these specific three suggestions, a smooth, cooperative transition is also critical to the success of the next president. In this regard, David, you and I can agree that the Bush team has been exceptional in supporting the incoming administration. National security is too important to allow partisan politics to interfere with the peaceful transition of power -- especially during a time when American women and men are actively engaged in ongoing combat.
Glenn M. Sulmasy is on the law faculty of the U.S. Coast Guard Academy and an expert in national security law. He is the author of the forthcoming book, "The National Security Court System: A Natural Evolution of Justice in an Age of Terror" (Oxford University Press). The views expressed are his own.
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