05/24/2013 04:54 pm ET Updated May 24, 2013

Guantanamo Bay: Obama Prescription Is At Odds With Top Military Advisers

WASHINGTON -- President Barack Obama's suggestion Thursday that "history will cast a harsh judgment" if the nation fails to deal with the detainees at Guantanamo Bay in 10 to 20 years might come as a harsh surprise to some of his top military and civilian defense advisers.

That's because they told Congress just one week earlier that the United States could be saddled with the prisoners even longer.

Obama was calling on Congress Thursday to end the laws they have passed restricting the administration from moving the 166 captives who remain at the United States' jail for terrorism suspects in Cuba.

"I know the politics are hard, but history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it," Obama said in a speech to the National Defense University. "Imagine a future -- 10 years from now or 20 years from now -- when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country."

"Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike," Obama said. "Is that who we are? Is that something our founders foresaw? Is that the America we want to leave our children?"

The answer to his rhetorical question was certainly meant to be no, but when the Senate Armed Services Committee questioned a panel of defense officials exactly a week earlier, on May 16, the answer was more like yes.

The hearing was called "The Law of Armed Conflict, the Use of Military Force, and the 2001 Authorization for Use of Military Force." It examined how the United States has been running the war on terror launched under that post-9/11 act of Congress, and whether the authorization was still relevant.

The officials argued that while it might be time to review the AUMF, as the authorization is known, it was currently being used appropriately and would be of use as long as there is a war on terror, or, as the administration describes it, a war on "Al Qaeda, the Taliban and associated forces."

And that war will not end any time soon, defense officials said. "I believe it's at least years in advance, based on my understanding of the organization, of resiliency of Al Qaeda and its affiliate forces. It's many years in advance," Michael Sheehan, the assistant defense secretary for special operations and low-intensity conflict, told Sen. Carl Levin (D-Mich.).

He was even more specific when pressed on the matter by Sen. Lindsey Graham (R-S.C.), who himself sees no soon end to the conflict.

"Yes, sir, I think it's at least 10 to 20 years," Sheehan offered as an estimated timeline for when the war effort may end.

The duration of declared hostilities is a key element of Obama's hopes to close Guantanamo and deal with detainees -- wherever they are held -- because as long as there is a conflict, international law permits the holding of prisoners of that war. When the war ends, the prisoners eventually must be freed.

"There will come a point when our enemy in this armed conflict is defeated, or so defeated that there is no longer an ongoing armed conflict," Robert Taylor, the acting general counsel for the Department of Defense, told Levin. "At that point, we will face difficult questions about what to do with those still remaining in military detention without a criminal conviction and sentence," he said.

But he noted that even after the hostilities are ended, there is precedent for the nation taking even longer to release the prisoners.

"I do point out that, following World War II, we continued to hold some people for several years as part of a general mopping up authority," Taylor said, apparently surprising Levin, who asked if war crimes were involved.

"No, sir," Taylor said. "They were prisoners of war, but who were assessed that they would so disrupt the delicate situation in -- back in Germany and elsewhere, that we held them for a few years."

Before Congress barred the administration from relocating the prisoners held at Gitmo, it had run into exactly that problem, finding it difficult to find countries willing to accept former terrorism suspects.

In spite of those assessments just a week before he spoke, Obama struck a much more optimistic tone for a post-Gitmo world.

"Now, even after we take these steps, one issue will remain, which is how to deal with those Gitmo detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted, for example, because the evidence against them has been compromised or is inadmissible in a court of law," he said. "But once we commit to a process of closing Gitmo, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law."

WATCH the exchanges above.

Update: 6:33 p.m. -- In a statement to HuffPost, National Security Council spokeswoman Caitlin Hayden said:

What the President said would bring harsh judgment is continuing to hold people who have been charged with no crime and holding them outside our borders. He was explicitly referencing the situation at Guantanamo, and the need to close it. What is true is that we can expect to still be facing a terrorist threat from Al Qaeda and other groups for years to come. But we will not deal with terrorists we capture by sending them to Guantanamo; it remains our strong preference to detain, interrogate and then prosecute in an Article III court or a reformed military commission. We have done it over and over again successfully, including, as the president noted, Umar Farouk Abdulmutallab, who tried to blow up an airplane over Detroit; and Faisal Shahzad, who put a car bomb in Times Square. As he said, it is in a court of law that we will try Dzhokhar Tsarnaev, who is accused of bombing the Boston Marathon. And Richard Reid, the shoe bomber, is as we speak serving a life sentence in a maximum security prison here, in the United States. The president acknowledged that even after we take these steps, we still need to resolve the issue of how to deal with those Guantanamo detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted. But, as the president said, once we commit to a process of closing Guantanamo, he is confident that this legacy problem can be resolved, consistent with our commitment to the rule of law."

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.



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