Obama's Guantánamo Mistake: He's Not Closing Gitmo the Right Way

President Obama is shutting down Guantánamo, but he's doing it the wrong way. I am not talking about the practical matters involved: where to put the detainees, how to prosecute them, whether to send some to other countries, and so forth. Those are all thorny questions, and they must be answered. But there is another dimension to putting an end to Guantánamo that doesn't seem to be getting the attention it deserves, and that is the legal dimension. Obama has issued an executive order -- a directive from the president -- to shut down the prison. That alone is not enough. What Obama must do now is work with Congress to enact a federal statute that outlaws forever the use of Guantánamo as a detention facility.

The problem with an executive order is that it can be changed -- easily. President Obama himself could reverse his new order tomorrow. That's almost certainly not going to happen, of course. But if Obama's out in four years, or eight, and a new president -- say, Mitt Romney -- wanted to reopen Guantanamo as a detention facility, he could do so the moment he takes office. (Recall that Romney said he wanted to double the size of Guantánamo.)

History provides a warning here. Guantánamo was a detention camp once before, in the early 1990s. The first President Bush used it to warehouse about 300 innocent Haitian political activists who'd fled their homeland after a military coup. The Haitians' crime? They were HIV-positive, and at the tail end of an era of fear and ignorance about AIDS, the White House didn't want the Haitians in the United States. The Justice Department cooked up the legal defense for the camp: The Constitution doesn't apply at Guantánamo, nor does any federal statute that might protect the Haitians. As a result, said Justice, we can do whatever we want to them. Not surprisingly, the camp was a disaster. Innocent people got hurt, and we were the target of international criticism. (Any of this sound familiar?)

On the campaign trail in 1992, Bill Clinton said in so many words that he would close the camp if elected. After becoming president, Clinton flip-flopped on the issue, but finally released the last of the Haitians in June 1993, in response to a federal court ruling. That ruling held that constitutional due process applies at Guantánamo, meaning the government could not simply imprison someone there indefinitely with no explanation. The Clinton Justice Department didn't like the idea of a court order that limited the uses of Guantánamo, so Justice lawyers appealed the case, and ultimately negotiated a settlement with the Haitians' lawyers. Part of the settlement was the lower court decision was vacated -- that is, erased from the books.

Jump to late 2001. With no legal limitations in place, the Bush administration reopened Guantánamo as a detention camp, this time to hold terrorist suspects rounded up from Afghanistan and Pakistan. We all know what happened next. Lies. Torture. Kangaroo courts. International condemnation. And so on. Guantánamo didn't make us safer. It represented a betrayal of our deepest values and gave al-Qaeda a ready-made recruiting video.

So twice in recent times, the temptation to use Guantánamo as an offshore, extralegal prison camp has mired a presidential administration in legal and moral muck. It's high time we cut off Guantánamo as an option for this sort of mess -- forever. An executive order won't do that. And while the Supreme Court finally ruled last summer that foreign detainees at Guantánamo have the right to challenge their detention in court, that still might not be enough to persuade a Mitt Romney sort to leave well enough alone. We have to go another route.

The answer is a federal statute prohibiting forever the use of Guantánamo as a detention facility. If Congress passes such legislation, and Obama signs it into law, then not only will he be bound by its prohibitions, but future presidents will be bound by it as well. The political will is there to deal with this issue. Now is the time to do it.

Some conservative policy scholars won't like this idea. They'll wring their hands about closing off options regarding situations we cannot foresee. The answer to that is simple: Some options should be off the table, and experience indicates that using Guantánamo as a prison camp is one of them. Of course, if a future president believes that new circumstances make it truly necessary to use Guantánamo as a detention facility, that future president can go to Capitol Hill and try to convince the House and Senate to change their minds on the matter.

Certain conservative legal academics also won't like the No Detention at Guantánamo Law. The president, they'll argue, is commander-in-chief and the "sole organ" of power in foreign affairs; a statute of the sort I'm suggesting might improperly impinge on his authority. But that view ignores the checks and balances of our constitutional structure. And the last eight years have been a disastrous demonstration of what happens when we try to convert our system of government into a one-branch entity when it comes to foreign affairs. The wiser, better view was expressed by Justice Robert Jackson, who in 1952 wrote that the president's powers are at their lowest ebb when Congress has exercised its own constitutional power and passed valid legislation in a particular area.

There's nothing wrong with an executive order that finally begins to undo the mess that President Bush created down on the southern tip of Cuba. But it's only the start of the job. Congress now has to join President Obama and lock up Gitmo for good.

Comments

[pjburke]

I do agree that a legislative "out of business" declaration for Gitmo is necessary.

I was hoping to keep a tiny part of it for "Clueless" George, "Dark Side" Dick, "Fredo" Gonzales and all of the rest of the criminals now at-large. That would be more just.

[kassandrasduplex]

This man Goldstein is RIGHT ON THE MONEY!!
And BTW, why all the cheering of Obama because he ordered Gitmo closed "within a year"? As if 7 years of illegal inhumane captivity isn't enough, let's add an eigth? The "detainees" could be transferred to a Federal prison tonight, granted habeus corpus tomorrow and given speedy trials. The most dangerous "terrorist" been Forgotten walks free. Why should these inmates be more threatening?
And anyone else notice that the news coverage is mostly referring to the Gitmo inmates as "terrorists" despite the fact they have never been convicted of anythig? The recent bombing of a UN safe zone school full of little kids in Gaza was a terrorist act but no one refers to those perpetrators as terrorists...

[dj202]

In long term, definitely Obama's policy of closing Guantanamo is great. But in current scenario, the prisoners with no proven guilty will be returned back to their countries of origin. Proving guilty is a tough task when it involves different nations. Especially Middle East and South Asian countries are highly dense populated and lack proper record keeping system. These countries have inflow of legal and illegal seasonal workers from neighboring countries. Some governments bear the international pressure but save home grown terrorists. The evicted prisoners will tell their stories of torture in these nations and local languages. This will further enhance the feeling of anti-west among fanatic and illiterate people.

Also, it is hard to convince religious fanatics through talks. Islamic terrorists are convinced that what they are doing is pious and according to the teachings of Quran. I am also not clear how to handle such people. Last year, in Texas hundreds of women and kids were taken out of FLDS church. Recently on CNN news, it was shown that all of them rejoin the family at same compound.

[hotwire]

I heard John Murtha wants to bring all the detainees up to Johnstown, pa. Says his constituents would welcome them with open arms. He really didn't say that did he? Maybe he could place them in family homes, kinda like foreign exchange students.

[genemessick]

But what to do with the facility after it's been emptied? Could flatten it, but here's another idea to make sure it never becomes a detention center again.

There's a huge amount of history connected with Guantanamo Bay all the way back to the Spanish-American War, up through the Missile Crisis, the Boat People, and on through it's current use. Basically, my proposal is to turn Guantanamo into a National Historic Park, celebrating, or at least commemorating, all that has happened there for over a century.

I wrote a more full description in an Article back on January 14th, a link to which is here:
http://www.opednews.com/articles/Mr-Obama-Don-t-close-Gua-by-Gene-Messick-090114-646.html
or from gene at earthhome.us

If Guantanamo were converted to another educational and commemorative use, that would assure it could never be used as a detention facility again. Plus, having a public history of the inhuman treatment that such a place was used for -- prominently on permanent public display -- would in itself help assure that no future President might try any such thing again.

[onechord]

how about just giving it back to cuba....

[RonMar]

I appreciate Professor Goldstein’s “mea culpa” at 6:40 p.m., January 22 and offer one from me. As Goldstein was overzealous in a “provocative” title of his opinion piece, I went too far in implying that Goldstein has no business or voice in offering opinions and feedback to President Obama. President Obama has asked for our inputs wisely, and we owe them to him as loyal Americans. Inputs praising him when we agree he is headed in the right direction, doing the right things, and inputs letting him know graciously when we disagree with him and his administration. The same goes for inputs to our other elected officials and the leaders appointed by them. That is a responsibility, obligation and right of all of us as U.S. citizens.

[hapiday]

"I get a little ticked when I hear people claim closing Gitmo is some brave liberal stand. John McCain was also for closing Gitmo, as are many other Republicans, and the great majority of Democrats, liberal and otherwise".

I wish the conservatives would explain to their co-horts, that Gitmo was in the process of closing.

I listened to 3 conservative talk shows this morning. The host and many of the callers were stating closing Gitmo was a bad move and would make the country unsafe. They than quoted McCain from the Larry King show as stating Pres. Obama didn't have a plan before signing the executive order. McCain and Pres. Obama both stated during the campaign Gitmo should be closed. Both stated the main question would be who would agree to take the detainees; and how to prosecute if needed? Mccain having been tortured for several years should be offering his expertise to the Obama Administration for the best way to physically complete the closing of Gitmo. The Obama administration will handle the legal aspects of closing Gitmo. This is not as simple as some would suggest. I'm glad Pres Obama has actually signed the order. This now forces the administration to work towards the actual closing instead of just talking about it's closing. Everything prior, was just talk and no real action.

[TimDanMick]

Does the US have a desire to abide by International standards of legal and decent behavior?
You don't need a Federal Statute ,as mentioned above, if the US complies with the wishes of the Cuban government and leaves Cuba. The US does not own the land and the Cubans don't want any part of their country occupied by foreign troops. Why can't we do the right thing?

[cuba pete]

Great Idea. Why did we not just open up POW camps to begin with? I always wondered that. Obama is too late to the fight. According to Article 22 of the Iraq Security Agreement, all detainees in Iraq and other various overseas facilities were due to start transferring on January 1st. Detainees started leaving that night, at 1201. This Security Agreement was hammered out under the Bush Administration and the last Congress. By extension, Guantanamo was already on a slow slide to closing. The American public needs to be informed about the spin the press and the new administration put on this information. The DoD already knew about all of the problems with detainees during this war, and was taking care of business.

[Kartoffel]

I get a little ticked when I hear people claim closing Gitmo is some brave liberal stand. John McCain was also for closing Gitmo, as are many other Republicans, and the great majority of Democrats, liberal and otherwise. It's been a while since closing Gitmo was a controversial idea that would require a lot of political courage. It's a constant and rather irritating theme among Obama supporters to exaggerate the bravery of his policy positions. This is a perfect example.

[LibRS]

"political courage"?

i call it insanity.

[hotwire]

Don't use McCain as an example, he's a republican­/conservit­ive in name only.

[anitaj]

You make an excellent point. Now that Obama has ordered that Guantanamo not be used as a prison, a bill should be introduced into congress to more firmly entrench the principle.

[swlewis57]

Just shut the stupid place down, strip it of anything useful, and give the land back to Cuba.

We shouldn't even be there in the first place.

[Savanna]

I would guess that before it is all said and done this is exactly what will happen. And, I might add..
if he tried to go through Congress that he would have a big fight on his hands. This way he can get it dispersed and then fight if he feels the need. I believe that the word is pragmatic..what works..this works today.

[LibRS]

another genius.

good lord. do you people have any brains whatsoever?

obviously not.

[martinchill]

where did the notion arise that u.s. laws don't apply at a u.s. military post?

nonsense - mr. chombee has the flaw.

[iBrock]

Obama's made several moves to the center-right after securing the DemNom, but he's reserved his pledge to close Gitmo simply out of political value to his core supporters and a like-me to nations unhappy with it. I'm confident (it's a mistake, but) that Obama's far too smart to do something as stupid as working with congress to forever ensure that Gitmo never be used as a detention facility. This is because the President has to be concerned with the "practical matters involved" that might demand that such a facility actually be used; alas, just this morning we have learned that Al Qaeda's number 2 in the arabian peninsula (yemen) is a Saudi who had been locked up in Gitmo. This is a real problem that should command our commander in chief to abstain from political symbolism like shutting Gitmo just to give the extreme left a little catnip to blind them while he doesn't raise taxes and disarm our nuclear stocks. Now, since I have an open-minded and optimistic view on Obama, I grant him the benefit of the doubt and conclude the detainees will be dealt with in similiar fashion but elsewhere. I'm sure they'll be some symbolic follow-through in the guise of some sort of due process so detainees may attain their release, or, freedom, it will be said--as if they are all just perpetually locked up now (see the some 60+ former detainees who've returned to the battlefields of islamic terrorist camps).

[ThesagaciousOne]

To all those who have decried statements that that some previously released detainees have returned to terrorist activities, I suggest that you look at the front page of that bastion of right wing thought, The New York Times. We know that at least one former detainee is leading an interesting life.

[Lemmy]

I notice that headline is nowhere on HP. What a naive column.

[Querent]

You could have provided a link. Or we could all conclude that it's just another Republican lie, which I think is more probable

[LibRS]

yeah i noticed that too. mabe because so many people, myself included, think it insane to close the camp.

[swkidder]

I think Obama did the correct thing - using an Executive Order to mandate the closure of Guantanamo was the most expeditious way to advise the rest of the world that we had come to our senses and to begin the process of shuttering this symbol of our national shame. But I also agree with the author that we should follow up on this action with binding legislation.
One of the most striking qualities in our Founding Fathers was their "first rate intelligence," their ability to hold two conflicting ideas in place simultaneously, and still manage to function. They believed in the "perfectability" of the institutions they were designing and the human "parents" of those institutions. At the same time, they held no illusions about the propensity of humans to occasionally succumb to less noble impulses - hence checks and balances. They deliberately tied their own hands in order to keep those hands clean and fit to continue building the nation. I think we can learn from their wisdom and their prescience. Sometimes the best thing we can do to insure that we behave well - is to put institutions and legal constraints in place that encourage such behavior.