Closing Gitmo is Just The Beginning

For civil libertarians and national security watchers, it's not hard to pinpoint President Obama's greatest failure in his first year. The prison at Guantanamo Bay, which Obama long promised to close within that now-expired year, remains open. But the truth about indefinite detention, at Guantanamo and elsewhere, is more complex than simple success or failure. The administration has quietly achieved some small but encouraging successes at Gitmo. But in many ways the greatest challenges surrounding indefinite detention are yet to come and will extend well beyond Guantanamo.

Most of Guantanamo's 192 prisoners simply await one of four legal solutions: civilian trial, military commission, deportation or release. These take time, but ultimately they are only a matter of following through on judicial or diplomatic procedure. The real challenge for closing Guantanamo is finding a way forward for the "fifth category" of detainees who, for reasons I explain here, are unsuitable for any of those four options. Without legal recourse, the U.S. has no real choice but indefinite detention. And as long as even one such detainee remains, the U.S. has little choice but to keep Guantanamo open.

But the Obama administration could already be on its way toward solving this problem. Only two months ago, administration officials claimed 75 fifth category detainees. Last week, that number was "nearly 50." Those 25-some detainees didn't vanish into thin air. As I've written, the administration's best option is probably whittling down the fifth category by finding a custom-tailored course of action for every one. That can require backbreaking work, from rebuilding entire criminal cases to developing complex diplomatic deals. But it appears to be working. If the administration is as successful with the next 50 fifth category detainees as it was with the last 25, the closing of Guantanamo Bay could be much closer than it seems.

However, even if Guantanamo closes, we will have only just begun to resolve indefinite detention. The United States maintains detention centers in Iraq and Afghanistan with many times the inmate populations of Guantanamo. In Afghanistan, the prison at Bagram Air Force Base holds 750 detainees. Military officials estimate that 80 to 90 percent of those detainees are non-ideological combatants, foot soldiers either forced or hired into fighting, who could be safely released. United Nations officials are pushing for exactly that to happen. As both Afghan and U.S. officials move toward reconciliation with Taliban elements, many of Bagram's cells could soon be empty. However, a minority of Taliban and al-Qaeda detainees at Bagram, far too dangerous to release, could pose problems akin to those at Guantanamo. U.S. forces are scheduled to began departing Afghanistan in July 2011. But handing Bagram's most dangerous detainees over to Afghanistan's frail justice system is hardly an option. Afghan prisons would simply be too susceptible to attack. Eventually we'll leave Afghanistan and will have no choice but to take those detainees with us. When we do, the White House will face the challenges of Guantanamo all over again.

Iraq will be much more complicated. Though detention centers at Bagram and Guantanamo are frequently cited as the gravest threats to due process and civil liberties, two little-discussed centers in Iraq could soon eclipse both. In Iraq, the U.S. is quickly dissolving its once massive detention operations, releasing prisoners outright or shifting them to Iraqi control. As the country's nascent justice system grows, it will take on more detainees, both proving the system's efficacy and reducing the burden on the U.S. In 2009, U.S. forces offloaded more than 9,000 Iraqi detainees, leaving them with about 6,000 in two facilities: Camp Cropper and Camp Taji. That's the equivalent of 30 Guantanamos. The U.S. has announced plans to transfer all detainees, and control of Camp Taji, to Iraqi authority by this August.

Much like Obama's self-imposed Guantanamo deadline, the deadline in Iraq seems unlikely to be met. Many of our detainees there could be simply too dangerous to hand over. Al-Qaeda and similar groups ran extensive and brutal operations in Iraq for years. Extremist militants hardened by decades of fighting Saddam Hussein helped launch the country into chaos. Foreign jihadists, especially from neighboring Syria and Saudi Arabia, flooded the country from the moment of the 2003 invasion. Terrorist attacks in Iraq have been some of deadliest and most perverse in modern history. Our detention centers there surely hold some of the world's most dangerous terrorists. Iraq's justice system appears effective but remains largely unproven. The U.S. would have to invest a great deal of trust, some of it blind, in Iraqi institutions in order to hand over al-Qaeda prisoners.

What if American officials decide that Iraqi courts and prisons aren't up to the task? Maintaining sprawling U.S. bases would undermine Iraqi sovereignty; detaining hundreds or thousands of Iraqi prisoners would undermine Iraq's justice system. But the strength of Iraqi institutions is key to the country's self-sustaining stability. The U.S. sees bolstering, not to mention respecting, Iraq's sovereignty as central to the long-term mission there.

Vice President Joe Biden demonstrated this approach during a recent visit to Baghdad. Iraqi politics are currently embroiled in a difficult constitutional crisis. The Shia leadership is widely seen as abusing de-Baathification laws to ban prominent Sunni politicians. This risks turning the upcoming March elections into a repeat of the Sunni-boycotted January 2005 elections, in many ways a precursor to the worst violence and instability of the Iraq War. Biden, in his remarks in Baghdad, publicly pressured Iraq's leadership to drop the ban, but was careful to take a soft touch absent of threats or demands. His speech set a major precedent in U.S.-Iraqi relations: Iraq will be respected as a fellow sovereign nation, not as a semi-protectorate like Afghanistan.

That precedent could become a tremendous obstacle if the U.S. decides against transferring over the most dangerous subset of detainees to Iraqi control. Keeping Camp Cropper open risks setting back the Obama administration's hard-won advances in Iraq. The White House may have to choose between maintaining a U.S. military-run detention center in Iraq, sure to enrage and alienate the Iraqi ally that 4,375 Americans died to establish, or bringing those detainees back to Guantanamo. If President Obama decides on the latter, you can bet there will be a lot more than 50 fifth category detainees, and they will take much longer than a year to resolve.