Matthew Waxman on closing Guantanamo in the Washington Post

Must read article in the Sunday, October 28, 2007 Washington Post Outlook section by Matthew Waxman, formerly of the State Department, Defense Department, and NSC over the years of the Bush administration, and now a professor at Columbia Law School and my good friend and co-member of the Hoover Institution's new task force on national security and law. Here at the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR2007102601761.html. (I'll have to fix the link later - this is the right URL, but for some reason I'm not able to embed the link.)

Matt offers a sober assessment of what can be considered for future detention policy for the United States. He sees a way forward to get beyond Guantanamo but, unlike the activist community and pretty much the whole academic community, understands perfectly well that there are people that the US government cannot and will not release, nor can it try them in regular criminal courts - and it does not matter whether it is a Republican or Democratic administration - moreover, the policy issues include not merely the "legacy" prisoners currently at Guantanamo, but the fact that the United States will detain people in the future that it will not release but willl not try in ordinary criminal courts. Matt is one of a handful of people - many of them on the Hoover task force, but rapidly expanding across many political and policy lines - trying to figure out something that represents the right balance between liberties and security. This is the kind of realistic, forward-looking thinking that is urgently needed now for figuring out what counterterrorism policy should look like in a new presidential administration. This is a highly, highly recommended article.

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Excerpts:

President Bush has said publicly that he would like to see Guantanamo Bay closed, if he could do so without putting Americans in greater danger. He can, and he should. My experience advising former defense secretary Donald H. Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there's a way out, but it will take some painful truth-telling to get there. For even if Guantanamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.

I'm not trying to challenge the improvised decision to create Guantanamo Bay's detention site in 2002. Rather, I want to challenge its continued operation in 2007. Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it's almost impossible to argue that the prison is keeping us safer.

To solve our Gitmo problem, we need to understand it better. Unfortunately, amid all the rhetorical heat, Guantanamo Bay's defenders and detractors have gotten carried away. For example, the soothing notion among some critics that everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets is a fantasy. But so is the Bush administration's dogged insistence that all the detainees there are the "worst of the worst." Some of them should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy), and such imprisonments have had tragic and dangerous consequences.

Likewise, the administration's critics are wrong to assert that we no longer gain valuable intelligence at Guantanamo Bay. But we should not exaggerate the value of the current information-gathering there either, which often comes from detainees who haven't been involved in terrorist plotting for years now. And while the improved general conditions I repeatedly saw are humane by the standards of U.S. and European prisons, Guantanamo Bay's defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there.

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What to do? It's easy to demand that the prison be closed, but it's hard to figure out what to do with the most dangerous detainees there, such as Khalid Sheik Mohammed, the mastermind of the 9/11 plot. And even if we agree that we shouldn't use Guantanamo Bay as a long-term detention site, we still need to work out what sort of system could hold large numbers of terrorist operatives rolled up in ongoing or future campaigns against al-Qaeda.

Simply returning all the detainees to their home countries (such as Yemen, Syria, Egypt and Pakistan) is no answer. Some of these nations won't take them; some would probably mistreat them; others might even release dangerous militants.

Prosecuting the Gitmo detainees for crimes in U.S. courts isn't a panacea either. Criminal prosecutions should be carried out whenever possible, but the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods. Or the evidence may not be admissible under U.S. criminal law rules.

So the best way to close Guantanamo Bay lies somewhere in between: transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder -- including those who would be prosecuted for war crimes -- to secure facilities in the United States. They would be held in military facilities, like those that already kept suspected American terrorists such as Jose Padilla, or in ultra-secure federal prisons such as the one that holds Ramzi Yousef, the architect of the 1993 World Trade Center bombing.

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Still, Guantanamo Bay is only the immediate manifestation of a much larger problem. For the foreseeable future, the United States and its partners will continue to capture suspected operatives of al-Qaeda and other terrorist groups. We need a durable, long-term framework for handling detainees -- one that lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable. Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents and bent on appalling carnage. So the United States, along with its closest democratic allies, ought to craft rules that are.

To get there, we should move beyond the debate between those who say that only traditional habeas corpus rights to a fair hearing can sort out these cases and those who say that noncitizen enemy fighters captured abroad in wartime have never been entitled to their day in court. We'd all be better off forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law. These should include periodic reviews by an independent judge of the factual bases for a detention, under clearly legislated standards, and meaningful chances to challenge those premises with the assistance of lawyers. It's almost impossible to perform judicial review in combat zones, so we may have to make careful exemptions there. But any system without these features will lack legitimacy at home and abroad.

Both of these proposals -- shutting Guantanamo Bay and establishing robust judicial review of detentions -- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open -- sapping U.S. prestige, alienating our allies and handing al-Qaeda a propaganda tool -- carries downsides, too ...