Closing Guantanamo: President Bush's Legacy in the Fight Against Terrorism

President Barack Obama signed an executive order on January 22, 2009, to close the Guantánamo Bay detention center within one year and halt trials of detainees under the Military Commissions Act. The executive order is symbolic in its repudiation of the Bush Administration’s policies in the so-called war on terror, as well as its assurances that the United States will comply with its obligations under international law, including Article 3 common to the Geneva Conventions. (A separate order goes so far as to revoke President Bush's Executive Order 13440, which provided a controversial interpretation of Common Article 3, and to prohibit interrogators from relying on any interpretation of federal criminal law, the Convention Against Torture, Common Article 3, or the Army Field Manual issued by the Department of Justice between September 11, 2001, and January 20, 2009.) President Obama’s executive order will likely go far to counter negative perceptions of the United States and should limit the ability of terrorist organizations to fuel anti-United States sentiment and recruit individuals to their cause. As noted by Alberto Mora, Navy General Counsel, Guantánamo is one of the two leading causes of U.S. combat deaths in Iraq “because of the effectiveness of [this] symbol[] in helping recruit jihadists into the field and combat against American soldiers.”

By order of President Obama on January 20, 2009, Defense Secretary Robert Gates directed the Chief Prosecutor to seek continuances of 120 days in all pending military commissions proceedings. The Chief Prosecutor noted that the Obama administration’s review of the status of detainees held at Guantánamo may result in changes that would “(1) render moot any proceedings conducted during the pendency of the review, (2) necessitate re-litigation of issues, or (3) produce legal consequences affecting the options available to the Administration following its review.” Military Judges in commission proceedings involving Omar Khadr and five individuals charged in the September 11 attacks, including Khalid Sheik Mohammed, subsequently issued rulings granting the Chief Prosecutor’s request, stating that “the interests of justice served by continuing the proceedings to allow the new Administration sufficient time to review the Military Commission’s process and decide the proper forum to prosecute the accused or to make appropriate changes to the current commission rules and procedures and avoid unnecessary duplication of effort outweigh the best interests of the accused and public in a prompt trial.” According to a Washington Post article, the government has similarly sought and obtained delays in habeas proceedings of Guantánamo detainees before District Judge Reggie B. Walton, and SCOTUSblog reports that President Obama has ordered the Justice Department to review a detention case awaiting a Supreme Court ruling - although that case does not involve an individual held at Guantánamo.

Despite its goal “to affect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base . . . and promptly to close detention facilities at Guantánamo,” President Obama’s executive order contains few details regarding the structure and process for releasing, transferring, and/or prosecuting detainees currently held at Guantánamo, or the future of preventive detentions. The executive order does not address the status of detainees at Bagram Air Base in Afghanistan or other CIA holding facilities - although a separate order ensuring lawful interrogations calls on the CIA to close detention facilities. In addition, it is unclear whether detainees currently held at Guantánamo will be released or transferred to other military facilities - within the United States or abroad - or whether they will face trial. President Obama will need to determine whether to continue trial by military commissions - and if so, whether to modify the military commission procedure, whether to try detainees in federal courts, or whether to create a hybrid court. It is worth noting that even though military commissions are problematic, the political branches of government, as well as the judiciary, have developed and altered military commissions procedures in an attempt to comply with United States and international law. Whether federal courts are capable of prosecuting suspected terrorists and whether a hybrid court would correct the pitfalls of the military commissions process is questionable.

As noted by President Obama in a separate order addressing detention policy options, review of detention policy is multi-faceted and includes “apprehension, detention, trial, transfer, release, or other disposition of [the] individuals captured.” The fundamental downfall of Guantánamo stems from an initial failure to adhere to requirements under international humanitarian law regarding status determination hearings under Article 5 of the Geneva Conventions. Article 5 hearings are a screening mechanism designed to reduce the likelihood that non-combatants are detained and to ensure that individuals whose status is ambiguous are afforded proper protections under the Geneva Conventions. Article 5 hearings become increasingly ineffective as detainees are removed in time and distance from the battlefield. For that reason, status determinations before Combatant Status Review Tribunals, held subsequent to an individual’s capture, are flawed. This failure, in addition to the use of coercive interrogation practices, has marred the process of detention and may render subsequent prosecutions futile for those currently detained at the base.

Although President Obama’s executive order sends a message to the world regarding the United States’ commitment to the rule of law, it fails to address many underlying issues regarding closure of Guantánamo and the larger issue of treatment of detainees in the “war on terror.” The projected year that the Obama administration will need to close Guantánamo in no doubt stems from flaws in the Bush administration’s treatment of detainees, beginning with their capture and extending to their interrogation and prosecution. What President Bush has succeeded in accomplishing as “the decider” is far from what is best for this country and the fight against terrorism. Instead, President Bush has left a legacy of ill-thought-out and poorly executed policies that have led to the detention and mistreatment of innocent individuals and will lead to the delay in prosecution and potential release of the few bona fide terrorists detained in the “war on terror.”

One can only hope that President Obama’s efforts to correct the Bush administration’s detention policies at Guantánamo will not hinder his ability to develop a new detention policy in the “war on terror” that both respects the rule of law and protects the national security interests of the United States.