3-15-2011By Raha Wala
Georgetown Fellow, Law and Security
“As President of the United States I will close it.” Those were the words of then-candidate for President John McCain in the summer of 2008, referring to his desire to shutter the detention facility at Guantanamo Bay, Cuba. According to McCain, Guantanamo was a “liability” because it was undermining the war effort and the reputation of the United States. McCain’s position at the time represented a consensus view–a view shared by national security experts, civil liberties advocates, military leaders, then-President George W. Bush, and the presidential candidate from the opposing party: Barack Obama. Although the underlying facts have not changed, now–over two years after President Obama signed an executive order to close Guantanamo–Senator McCain has introduced legislation that, if implemented, would constitute the single most sweeping and disruptive overhaul of counterterrorism policy since 9/11, virtually ensuring that Guantanamo remains open for years or even decades to come.
The McCain bill, introduced by Senator McCain on behalf of himself and five colleagues, is a companion bill to similar legislation introduced in the House by Representative Buck McKeon, Chairman of the House Armed Services Committee. Although there are significant differences between the bills, both are draconian pieces of legislation designed to expand the current war efforts and fully militarize counterterrorism operations, thereby eliminating some of the most potent and effective counterterrorism tools the President has at his disposal.
For example, both bills require that terrorism suspects be held in military custody rather than handled by FBI agents and federal prosecutors, who have successfully elicited a substantial amount of valuable intelligence information from terrorism suspects, including telephone numbers and email addresses used by al Qaeda and its affiliates, al Qaeda communications methods and security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests.
Moreover, by forcing terrorism suspects into military custody, the McCain and McKeon bills tie the hands of federal prosecutors, who have convicted over 400 individuals of terrorism-related offenses since 9/11. So instead of ensuring that terrorism suspects are properly interrogated and promptly brought to justice, the McCain and McKeon bills contemplate sending even more terrorism suspects to Guantanamo to languish indefinitely. This would only further complicate the President’s plan to close the offshore detention facility, which continues undermine the U.S.’s reputation and serve as a major recruiting tool for al Qaeda.
As the United States winds down costly war efforts in Iraq and Afghanistan, the McKeon and McCain bills assert novel and unchecked war powers that dangerously allow the President to detain and use military force against a broad category of individuals, nations, and organizations anywhere in the world “until the end of hostilities.” What this likely means is that, under these bills, the President can hold terrorism suspects, including American citizens, for years on end without trial, and target them with lethal force anywhere and at any time–today, tomorrow, or even five years from now. This is the definition of never-ending war, and if the thought of that isn’t sending shivers down your spine, it should.
These bills were in part introduced in response to renewed efforts on behalf of the Obama administration to assert some control over Guantanamo policy. Last week, President Obama issued an executive order outlining additional detention review procedures that are designed, in concept, to facilitate the transfer and release of detainees that might otherwise be held indefinitely at Guantanamo. While this executive order on the whole is a step in the right direction, the Obama administration also announced–in what is unmistakably a step in the wrong direction–that military commission trials for Guantanamo detainees would resume; there was no word on whether the Obama administration would move forward with civilian trials in tried and true federal courts. Nonetheless, the Obama administration maintains that it is committed to closing Guantanamo by focusing on prosecuting and transferring detainees.
Whatever one thinks about the Obama administration’s most recent posturing vis-à-vis Guantanamo, it is clear that the McKeon and McCain bills are designed to encroach on the President’s authority and ensure that Guantanamo will remain open indefinitely. Both bills would tinker with the President’s review process in ways that would simply undermine the process without adding any value. Both bills would also permanently establish reckless and irresponsible transfer restrictions that could keep detainees at Guantanamo for months or even years after they have been cleared for transfer. And both bills effectively force the Obama administration to try terrorism suspects in fundamentally flawed military commissions, which, due to lack of experience and serious legal challenges, have only convicted six individuals of terrorism offenses since 9/11.
In the end, what’s clear about the McCain and McKeon bills is that they threaten to undermine national security by uprooting established counterterrorism tools and supplanting them with dangerous, untested, and overly-militarized procedures. Under current law, the United States already has broad authority and strong tools to disrupt, detain, and prosecute international terrorists. Consistent with human rights and the rule of law, Congress should focus on strengthening these time-tested counterterrorism tools, rather than expanding costly, unpopular wars and enshrining Guantanamo as a permanent fixture of second-class justice.