The 221 mass murderers, wrongly imprisoned innocents, and possibly dangerous in-betweens still at the Guantanamo Bay prison camp (at this writing) rank among the most vexing messes that President Obama inherited from his predecessor.
But this mess also presented Obama with the opportunity to seek detailed legislation to put on a sound legal footing the long-term, noncriminal detentions of the many at Guantanamo who are provably dangerous enemy fighters but cannot be convicted of crimes.
Obama should also stop dragging his feet on releasing those detainees who are clearly innocent or at least not provably dangerous. Some of those men continue to languish at Guantanamo despite federal court decisions over the past year finding no evidence to justify their detention and ordering their release.
The president commendably said in May that he would "work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution." But he reversed himself last month, thereby perpetuating a Bush-created detention process that is neither fair nor credible.
Based on palpably biased military hearings, the Bush team classified all of these men as "enemy combatants" — a phrase that the Obama team ostentatiously rejected while adopting the underlying legal concept.
The fundamental flaw in the Bush policy was reliance on unilateral presidential power rather than detailed legislation, which could have crystallized a national consensus on how to guard against mistaken detentions while also ensuring the fairness of the military commissions that Bush created to prosecute detainees accused of war crimes.
The Bush approach lacked democratic legitimacy. It also made a mockery of due process, by presuming all of the detainees to be terrorists — based on flimsy evidence in many cases — while disregarding strong evidence that many were innocents caught in the wrong place at the wrong time.
This helped make Guantanamo a potent symbol of American lawlessness. And by the time that Khalid Shaikh Mohammed and others who had been brutally interrogated in secret CIA prisons overseas were sent to Guantanamo in September 2006, with the intention of prosecuting them before military commissions, world opinion was more focused on American abuse of prisoners such as Mohammed than on their massacre of Americans.
Bush’s abuses also provoked the Supreme Court to engineer an unprecedented — and in important ways unfortunate — expansion of judicial power over military matters by slamming his Guantanamo policies in three decisions, in 2004, 2006, and 2008.
The last decision gave federal courts in the District of Columbia wide-ranging authority to entertain habeas corpus lawsuits by Guantanamo prisoners seeking release. But the justices provided these lower courts with little guidance on fundamental questions, including who can be detained as an enemy combatant; for how long; the burden of proof; whether classified evidence must be shared with detainees or their lawyers; and other evidentiary rules.
Obama made a good symbolic start at cleaning up the Bush mess when he pledged on January 22 to close the Guantanamo prison camp within a year and renounced brutal interrogations. Guantanamo — which by then had evolved into a model prison — had also become an irretrievably toxic symbol.
Although Obama may not be able to meet his self-imposed one-year deadline, that is the fault of Congress, which has irresponsibly barred the president from transferring most of the detainees to lockups in the U.S.
Obama has himself to blame, however, for failing to seek new legislation to clean up the deeply flawed Bush detention regime. This failure has harmed both national security and innocent detainees.
The courts have now ruled in favor of almost three-fourths of the approximately 40 Guantanamo detainees whose cases have already been decided.
This does not necessarily mean that all of the victorious habeas petitioners are harmless. With no clear rules to protect sensitive intelligence from disclosure to detainees or their lawyers, intelligence agencies are reluctant to share their information with judges or even the Justice Department. And the judges — accustomed to applying rigorous criminal-law evidentiary rules — are understandably skeptical of the scraps of hearsay and the like that the agencies are willing to provide.
Some of the detainees who have won habeas corpus hearings clearly are harmless, however — and yet still about 20 of them languish at Guantanamo. These include 13 of the 17 Uighurs — a Muslim minority in China — who have been detained since 2002 even though the government concedes that they pose no threat to Americans. Federal District Court Judge Ricardo Urbina ordered them released almost a year ago, but the government won an appeal based on immigration law; the Uighurs are now seeking Supreme Court review. (Four Uighurs have been released to Bermuda, and the Pacific island nation of Palau has agreed to take in most of the rest.)
Another man who should probably have been released by now is Abdul Rahim Abdul Razak al-Janko, a Syrian whose detention "defies common sense," Judge Richard Leon held on June 22. Rejecting the Obama Justice Department’s claim that al-Janko had once been "part of" the Taliban or Al Qaeda, the judge found him to be "an innocent man" who had been tortured by Al Qaeda, wrongly imprisoned for 18 months by the Taliban as an American spy, found in the Taliban prison by American forces, and then wrongly imprisoned in Guantanamo for seven years. Leon ordered the government to find a country that would take him in.
Whatever the validity of the administration’s legal position, its continued detention of apparently innocent men is both unjust and impossible to justify to world opinion.
It didn’t have to be this way. Experts including Neal Katyal, now Obama’s deputy solicitor general, have for years urged creation of a new national security court to decide which suspected enemy combatants can be detained and for how long, and to order the prompt release of those whom there is little or no reason to fear. Another possibility would be to continue using the D.C. federal courts as a de facto national security court.
In either event, the key would be for Congress to prescribe detailed rules defining "enemy combatant," protecting classified evidence, determining when hearsay should be admitted, providing for regular reviews of whether a detainee can safely be released, and other issues distinctive to such cases.
Such legislation would adapt the government’s traditional power to detain enemy combatants during wartime to the challenge posed by the unprecedented difficulty of sorting out enemy jihadists from the innocent bystanders among whom they hide.
Instead, the president and Congress have left it to judges to craft this vital national security policy on an ad hoc basis. This is a task for which the judiciary — which lacks military, intelligence, and foreign-policy expertise — is profoundly ill-suited.
Obama’s failure to seek legislation is not entirely his fault. Congress has shown no interest in grappling with the tough liberty/security trade-offs posed by the Guantanamo detainees. And as Benjamin Wittes noted in a recent Washington Post op-ed, civil-liberties and human-rights groups "are so keen to avoid legitimizing detention in legislation that they have treated as a victory the president’s decision to adopt the very policy they have spent the past eight years denouncing."
But presidents are supposed to lead, especially on national security.
A little-discussed virtue of legislation legitimizing the detention process, suggests Jack Goldsmith, a Harvard law professor and former Bush Justice Department official, would be to avoid the costs and risks of criminal trials. He worries that criminal trials might do national security more harm than good, even if the defendants are convicted.
Criminal trials would provide Mohammed and other 9/11 plotters with a grand stage on which to spew anti-American propaganda before a media circus. Any efforts by judges to cut off such legally irrelevant harangues would generate more attacks on the fairness of the trials. The story of how the defendants and others massacred thousands of innocent people might get lost in the noise.
I share Goldsmith’s concerns but still see criminal trials for Mohammed and other leaders of the 9/11 conspiracy as necessary. They should probably be held in federal courts (despite nightmarish security problems) rather than military commissions (which are widely derided as illegitimate).
But what about the death penalty? Prosecutors would be under great pressure to seek it, given the enormity of the 9/11 mass murders. And juries would likely impose it.
Still, "I kind of hope they [the terrorists] don’t get it," as then-Attorney General Michael Mukasey said in March 2008, "because many of them want to be martyrs." Indeed, executions might inflame anti-Americanism and perhaps spawn deadly violence across the Islamic world and in Western Europe.
Better to let Mohammed and his co-conspirators rot slowly, in obscurity, in cells somewhere north of Guantanamo.