The Detainee Quagmire

Michael Gerson
|
Posted: Sep 07, 2007 3:21 PM

If the president, the secretary of state and the secretary of defense all want to see the Guantanamo Bay prison closed before they leave office -- as they do -- why does it remain open?

When asked this question directly, senior administration officials -- some of the ones charged with implementing such changes -- reveal the difficulties of turning a gesture into a policy.

First, they explain, countries such as Saudi Arabia, Pakistan, Afghanistan and Yemen, which exported these terrorists, don't want them back, at least under conditions we find acceptable. America insists that returned terrorists remain under lock and key, and also not be tortured. A number of nations have problems with one or both commitments.

Second, the legal procedure currently in place -- judgment of terrorists by military commissions -- has been bogged down by court challenges. "Six years in," says one official, "and we have still not done the first stages [of the legal process] for the first people we captured. Only in the United States could [Osama] bin Laden's bodyguard appeal to the Supreme Court."

And third, administration officials increasingly recognize that there is no eventual solution to Guantanamo Bay without legislation by Congress.

As much as we'd like this facility to simply disappear, it exists for a reason. Captured terrorists remain dangerous; they know they are at war with us even when we question it ourselves. And the circumstances of their capture often make normal legal prosecutions -- witnesses and proof beyond a reasonable doubt -- impossible. Some were captured by other countries. Some were identified by classified or inadmissible evidence. And in a war zone such as Afghanistan, there is little concern for preserving an unbroken chain of evidence. For all these reasons, the long tradition of war allows captured combatants to be detained until hostilities end -- not to punish them but to prevent them from returning to the battlefield.

Currently, however, these detainees are identified and held only on executive authority -- because the president says so. But this does not seem legally sustainable. The Supreme Court, in an unusual move, has reversed itself and accepted a case on military commissions. Some experts predict the court will strike down indefinite detentions that lack legislative authority. But something would need to replace that system.

A middle-ground solution, supported by some in the administration, would be to close Guantanamo and have terrorists moved to a military prison in the United States. Bring their cases before a federal judge -- not for a full-blown trial but for a review to determine whether a detainee had aided or conducted terrorism. The government would need to present information that the detainee was, for example, a member of al-Qaeda and not just some shepherd. And the court would conduct periodic reviews -- maybe once a year -- to determine if a terrorist was a continuing threat.

This kind of system would allow for administrative detention to protect Americans while putting it on firmer and fairer legal footing. But only Congress can make this happen.

The public signs from Capitol Hill, so far, are not good. In July, the Senate voted 94 to 3 for a nonbinding resolution that opposed the movement of Guantanamo prisoners stateside. Some members of Kansas's congressional delegation have already made it clear that the state will not be putting out a welcome mat at Fort Leavenworth for al-Qaeda operatives.

And the news isn't better in private. Administration officials have put out feelers to a few members of Congress who might sponsor legislation and have been told the timing isn't right -- that Iraq and other issues are hard enough without taking this on.

The Guantanamo Bay prison will eventually be closed, because it has become a symbol of American indifference to human rights. And it should be closed, because that symbol is actually a lie. President Bush has placed human rights at the center of his foreign policy agenda in unprecedented ways -- from the promotion of liberty, to increases in development assistance, to the campaign against human trafficking, to the fight against disease -- and this legacy would be strengthened if he shut the gates of Guantanamo for good.

But that can't be done by the president alone. It requires the help of Congress and a mature admission on the part of all: Emergency measures taken in the aftermath of Sept. 11, such as Guantanamo Bay, were understandable and appropriate on a temporary basis. But now, six years later, we need a better system, and a broader consensus, to protect ourselves in a long war.