Gitmo's Troubling Afterlife: The Global Consequences of U.S. Detention Policy

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Closing the camps in Guantánamo Bay won't address the real problems with noncriminal incarceration.

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Protesters seeking the closure of the Guantanamo Bay detention facility demonstrate outside the White House on January 14, 2011. (Jim Young/Reuters)

Senator Dianne Feinstein recently commissioned a Government Accountability Office report identifying prison facilities in the continental United States suitable for detainees currently held in Guantánamo Bay. After Fox News reported about this document, her office released a statement saying that the GAO's study "demonstrates that if the political will exists, we could finally close Guantánamo without imperiling our national security." Independently, a coalition of advocacy groups sent President Obama an open letter on Tuesday urging him to veto the 2013 National Defense Authorization Act if it impedes the administration's ability to close Guantánamo.

Thus, though U.S. detention policy was not a contested part of the 2012 election, it may reemerge as a political issue. Benjamin Wittes of the Brookings Institution noted in his essential volume Detention and Denial that current public discussion of the issue represents "denial and obfuscation," in that "we pretend that noncriminal detention doesn't exist or that we're phasing it out" rather than facing the daunting task of reforming it. The early stages of this new round of wrangling over detention policy, unfortunately, seem to represent another step in the direction of denial rather than toward reform.

At the outset, let's not pretend that physically moving Guantánamo detainees into the United States addresses any of the reasons noncriminal detention has been controversial. True, moving the location of detention removes the physical symbol of Gitmo, which has a great deal of resonance internationally. But the substance of the policy would not change if detainees were housed in Illinois rather than Guantánamo. The same laws, rules of evidence, and construction of presidential power would remain even if the location shifted. Yet this renewed debate is largely shaping up as an argument over where detainees should be held.

It is true that President Obama said in a Daily Show appearance during the course of the presidential campaign, "I still want to close Guantánamo. We haven't been able to get that through Congress." But this statement largely masks the evolution in the president's thinking on the issue of preventive detention, and what closing Guantánamo would actually mean.

Obama famously promised during the 2008 presidential campaign that he would close the Guantánamo facilities, and signed an executive order upon assuming office requiring their closure within a year. But as Daniel Klaidman details at length in Kill or Capture, a series of intense internal debates within the administration ultimately convinced the president that there was a category of detainees who the administration would have to continue to detain "because they cannot be prosecuted but are too dangerous to release." The phenomenon of recidivism among former Gitmo detainees underscores this concern.

Because of this shift in Obama's thinking, his showdown with Republicans over Gitmo in his first term did not involve administration proposals to try or release all detainees. Rather, the major debate involved whether detainees should be moved to the Thomson Correctional Center near Thomson, Illinois. (There were also, of course, a few other controversies related to detention policy, including the administration's ill-fated attempt to try Khalid Sheikh Mohammed in Manhattan criminal court.)

Reform of U.S. detention policy is more vital than moving detainees to other facilities.

The evolution in Obama's thinking is, in my view, not a bad thing. Despite overheated rhetoric to the contrary, detention of enemy combatants is a traditional tool of warfare for obvious reasons -- namely, the concern that a captured soldier or "unlawful combatant," if released, will return to the fight. For this reason, the Third Geneva Convention explicitly contemplates the detention of enemy combatants until "the cessation of active hostilities."

Thus, although the public debate about American detention policy has become hopelessly confused, the real reason this practice has been controversial over the past decade is not the fact that individuals are being held without trial: That happens routinely during war. Rather, it is the fact that this conflict presents unique circumstances. For one thing, the enemy doesn't wear a uniform, so how do you determine who is actually a part of the enemy force?

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Daveed Gartenstein-Ross, the author of Bin Laden's Legacy, is a senior fellow at the Foundation for Defense of Democracies.

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