Rivkin and Casey argue against closing Gitmo in WSJ

My good friends David B. Rivkin, Jr. and Lee A. Casey have a new piece in the Wall Street Journal opinion page today, Monday, July 9, 2007, arguing against closing Guantanamo. As I discuss in my previous post, I myself call for closing Guantanamo in my new Fordham piece, provided that certain conditions for creating a system of civilianized administrative detention are met. Rivkin and Casey argue that this is a dubious proposal, and lay out various reasons why it either won't work, creates new and serious problems, or will simply serve as the thin wedge for dismantling even the modest regime of counterterrorism we now have. I have learned a vast amount from David and Lee over the years, and I take their views very seriously although, in this case, I simply think the political damage of Gitmo is no longer worth it, and that if a system of civilian administrative detention could be established, that is a better way forward than taking the increasingly "stretched" view that detention and trial can best be accomplished through a legal "war" paradigm. That's not to say that David and Lee are not right - their observations and warnings are astute and clearminded - or would not turn out to be right, in their assessments of what would happen to essentially dismantle a civilian, US-territory based system of administrative detention and a national security court. They might very well turn out to be only too correct in their warnings.

I'll see if I can find an open link to the WSJ later. Okay, some excerpts, below. I emphasize that David and Lee make some very telling points, starting with the marquee that since the administration's critics by and large don't think there is a war on terror, closing Guantanamo in favor of some non-standard detention scheme, even if civilian rather than military, will mollify them.

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The Gitmo Distraction
By DAVID B. RIVKIN, JR. and LEE A. CASEY
July 9, 2007; WSJ Page A15

Reports suggest that President Bush's top advisers are again wrestling with whether to close the detention facility in Guantanamo Bay, Cuba. There is no doubt that holding captured al Qaeda and Taliban fighters at that facility has become a significant diplomatic liability.

But the potential foreign policy benefits of moving war on terror prisoners must be weighed against the very real strategic, tactical and legal costs that this decision would entail. After looking at these, it is difficult to avoid the conclusion that maintaining the Guantanamo Bay facility is not only justifiable but necessary.

Perhaps the most important cost of closing Guantanamo would be strategic. From the start of this conflict, al Qaeda's strategy for victory has been to take maximum advantage of Western sensibilities and institutions, including public opinion and legal rules which limit what states can do in their own defense. The Bush administration sought to minimize the impact of this type of strategy by itself adopting a wartime legal paradigm, declaring a war against terror and using the full force of the United States military -- rather than relying primarily on American law-enforcement resources -- against al Qaeda and its allies. Detaining captured al Qaeda and Taliban operatives as enemy combatants at Guantanamo Bay was, and remains, a central aspect of that policy and there is little doubt that abandoning it will be seen by al Qaeda as a failure of American nerve and a vindication of their strategic vision.

Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis give terrorists a legal advantage. The status quo is the best option we have.

There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the "20th" 9/11 hijacker Zacarias Moussaoui.

The first alternative, moving the detainees to a different overseas location, would incur considerable expense (the current facilities would have to be more or less replicated in another location) and would almost certainly provoke a constitutional crisis between the president and the Supreme Court. The justices have already ruled in Rasul v. Bush (2004) that Guantanamo Bay, based on its unique status as Cuban territory subject to the U.S.'s exclusive authority, is subject to federal court jurisdiction.

Although this case was wrongly decided in light of the court's other precedents, withdrawing detainees from Guantanamo now would prompt the Supreme Court to consider another expansion of federal judicial power, effectively following the detainees wherever they are moved. And, given swing Justice Anthony Kennedy's uncertain temper in war on terror cases, a five-justice majority may well find a pretext to do just that. The president would then be placed in the unenviable position of accepting judicial oversight not merely at Guantanamo Bay, but also in active, foreign theaters of war -- or ignoring the court's ruling.

The second alternative, bringing the detainees into the U.S., also would be no panacea. This too would be costly, involving creation of new maximum-security prison space in an already overcrowded federal system. Relocation to the homeland would also raise the potential for escapes into the civilian population and would open vast new litigation vistas for the detainees and their American lawyers -- including challenges not merely to their classification as enemy combatants, but to the ongoing conditions of their confinement as well. Although Congress could attempt to avoid this projected litigation explosion by statutorily limiting detainee rights -- as it did in the 2005 Detainee Treatment Act and 2006 Military Commissions Act -- there is no guarantee that these or similar provisions will withstand constitutional scrutiny once detainees are in the U.S. and subject to the U.S. Constitution.

This is especially true with regard to proposals for the creation of a type of administrative detention that would permit the most dangerous detainees to be held indefinitely -- without criminal trial in either civilian or military courts. Despite the rhetoric of the administration's critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.

Thus, even assuming that congressional Democrats would accommodate the administration's request for such legislation -- and they do not appear to be in an accommodating mood -- the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America's streets.

This frightening possibility is real enough, because the final option -- processing the detainees in the civilian court system -- is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.
Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.

CIPA permits the government to protect classified information throughout the pre-trial, including the "discovery," phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant's right to have the evidence against him presented in open court -- another legislative option allegedly contemplated by the administration -- is neither likely to be adopted by Congress nor blessed by the courts.

Finally, in addition to these costs, the potential benefits of closing Guantanamo are illusory. The most commonly articulated reason for this step is to improve relations with our allies, especially in Europe. However, Europe's real objection is not to the detainees' location at a U.S. Naval Base in Cuba, but to their confinement as enemy combatants in the first place. By and large, Europe has never accepted that there is a "war" on terror. Moving detainees to Afghanistan or the U.S. will not change this.

To obtain any "public diplomacy" advantage from closing Guantanamo, the president must be prepared to declare an end to military operations against al Qaeda, and a return to the pre-9/11 policy mixture of law enforcement, diplomacy and surgical strikes against al Qaeda outposts that failed miserably. This is also why lesser changes at Guantanamo, such as inviting European allies to participate in both the operation and review of continued detentions, are impractical. Those allies simply do not believe there is a war in which these fighters can legally be held.

Just as nothing short of total U.S. withdrawal from Iraq would appease the administration's opponents, the critics of Guantanamo Bay will not be satisfied with anything other than abandonment of the war against al Qaeda. If, as the president says, a U.S. withdrawal from Iraq would be a key defeat in the war on terror, ending that war itself -- leaving al Qaeda bruised, but very much in possession of the global battlefield -- would be an even greater calamity.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.