By Richard E. Friedman

Richard E. Friedman is the President of the National Strategy Forum and Publisher of the National Strategy Review.

Closing the Guantanamo Bay Detention Center raises issues of strategy and tactics, failure to anticipate consequences, domestic politics, and international imagery.  The saga begins with the trial and convictions from the World Trade Center bombing of 1993, wherein the defendants were tried and convicted of murder and conspiracy in federal district court in New York.  These persons are now serving life sentences a supermax prison in Colorado.

Several months before the invasion of Afghanistan and, subsequently, Iraq, legal scholars and national security law practitioners presented the Bush II Administration with memos outlining options for battlefield detention, the need for preservations of the chains of evidence, and due process considerations such as probable cause for detention, right to counsel, and habeas corpus concerns.  They also discussed the appropriate forum for trial—military commissions, court-martial proceedings, and federal district court criminal or terrorist trials.  This sound advice was either ignored or rejected.

Eight years later, the same issues are pending. Failure to identify these issues has resulted in incalculable damage to U.S. international leadership.  Subsequent issues have arisen: the Abu Ghraib Afghan prison scandal, the discussion regarding torture and interrogation techniques, and candidate, now President, Obama’s decision to close Guantanamo.

Shortly after 9/11, Congress passed the “Authorization to Use Military Force Act” (AUMF) which granted the President authority “to use all necessary and appropriate force against those…[who] planned, committed, or aided terrorists attacks” against the U.S.  This is the legal foundation for the Global War on Terror. On January 22, 2009, President Obama issued an executive order requiring Guantanamo Bay Detention Center to be closed as soon as possible and no later than one year from the date of the Executive Order.

In May 2009, Congress expressed its opposition to any convicted terrorists being incarcerated in U.S. prisons.  However, in June of this year, Congress partially reversed its position by prohibiting the Administration from freeing and transferring Guantanamo detainees onto U.S. soil until September 30, 2009.  Nevertheless, the compromise allowed the Administration to transfer to the U.S. any detainee it intends to try.

Although the Obama Administration declared its intention to close Guantanamo, it did not plan for the consequences: Where would the released Guantanamo detainees go—those who are tried or convicted by military commissions, court-marshal proceedings, or federal courts?  The obvious choice for a caring and apologetic America would be to find safe havens for the released detainees in the U.S.  However, American culture includes NIMBY (Not In My Backyard) when it comes to halfway houses, paroled criminals, drug addicts, and homes for developmentally disabled young adults.

Four Chinese Muslim Uighurs have been accepted by Bermuda. One opined that his life in the Guantanamo prison was far better than his condition in China.  The Pacific Island of Palau has agreed to take 17 Uighurs in return for $200 million in U.S. development aid. (Palau will receive $11.6 million per Uighur, while Bermuda will receive from the U.S. only $25,000 per Uighur.)

Approximately 232 detainees remain at Guantanamo, some of whom are awaiting trial.  The Europeans have been most vocal in their support of humanitarian rights for Guantanamo detainees and praise for President Obama’s declaration to close the Guantanamo prison. However, there is a decided lack of enthusiasm in the European Union to accept detainees.  A fundamental reason why political reality trumps humanitarian pronouncements is that a detainee accepted by one EU member country would be able to move freely among the others.

In addition to the problem of finding havens for detainees to be released from Guantanamo, there is another array of constitutional issues.  The scope of constitutional protection afforded to detainees within the U.S. is different from the protection owed to persons held at Guantanamo or elsewhere.  Also, the transfer of Guantanamo detainees has immigration consequences, such as asylum and other protections.

A Guantanamo detainee transferred to the U.S. for trial would be deemed to be either a criminal or a terrorist.  Constitutional issues include the right to an early trial and limitations on the use of hearsay and secret evidence.  Federal courts are flexible and can develop ad hoc procedures, but there will be a steep learning curve when the trials of Guantanamo detainees begin.

A retrospective review of the strategy and tactics of how two U.S. administrations have addressed the issue of battlefield detainees is not comforting.  There was no strategy and there were no tactics.  The application of common sense would have yielded the following considerations to be applied to an effective strategy:

• Battlefield detainees of the wars in Afghanistan and Iraq should not be characterized as traditional prisoners of war.
• Catch and release of battlefield detainees is not appropriate.
• A record of detention and preservation of the chain of evidence is required.
• Civil rights of detainees must be protected.
• Rapid acquisition of intelligence from battlefield detainees is critical.

Questions that should have been considered include:

• What interrogation techniques could be used that would not be considered forms of torture?
• Where is the appropriate place of incarceration for battlefield detainees?  Is the U.S. military well-trained and prepared to act as prison guards?  The Abu Ghraib scandal is instructive in this regard.
• What is the appropriate judicial forum: military commissions, court martial proceedings, or federal court criminal or terrorist trials?
• What is the appropriate trial procedure?
• What would be the effect on international public opinion of incarcerating detainees at Guantanamo?
• What is the appropriate sequence of events regarding the release of detainees at Guantanamo?  First, finding havens for released detainees; second, a determination of the mode of trial; and third, release.
• How should the U.S. present its detainee policy to the American and global audience?
• What would an effective U.S. diplomacy strategy entail?  Advanced discussion and consultation with other states that might become havens for released detainees?

Most of these considerations and questions could have been anticipated and resolved by application of common sense.  In fact, this was done, in part, by legal scholars and national security law practitioners.  Yet, neither the Bush nor the Obama Administration made use of these recommendations.