Our extranational shadow justice experiment has been a failure on virtually every level. The clear response would seem to be closing it, but circumstances inside the Beltway may trump the obvious.
For more on pruning back executive power see Pruning Shears.
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It appears the President has intentionally created a terrible mess at Guantánamo Bay. Seth Waxman was detainees’ counsel in the Boumediene case and during its arguments noted that “our national control over Guantánamo is greater than it is over a place in Kentucky, because there we have — under our system of federalism the Federal Government has limited controls.” What existed as an unremarkable legal obscurity in previous administrations has emerged as a full-blown international relations nightmare that greatly damages America’s moral authority in the world. It is hard to imagine a more direct contradiction to our stated devotion to democracy and liberty, or a more emphatic symbol to sour the hearts and minds we are ostensibly trying to persuade.
It has damaged our own justice system as well. Consider its brief history: It was used to keep detainees from being under any court’s jurisdiction. That scheme was challenged and overturned by the Supreme Court, and Congress quickly submitted to the President’s demand for the Military Commissions Act (MCA) – which prompted our then-Attorney General to make some of the most absurd claims (via) about law and the Constitution by a supposed expert in our nation’s history. The MCA’s attempted implementation of habeas-lite was overturned by Boumediene, and getting a favorable outcome even by the rigged standards of its tribunals has proved to be problematic. (I suspect history will be very kind to Lt. Col. Darrel Vandeveld and other officers who appear to have risked a good deal to make what they surely know are very unpopular decisions.) Each step along the way the credibility of American law erodes a bit further.
With all that in mind you would think closing the facility would be a slam dunk decision, to coin a phrase. At the moment its doors are barely being propped open by a historically unpopular lame duck and it is a luminous embarrassment at home and abroad. All we need is for the President to slouch offstage and start his next project of replenishing the ol’ coffers (may he be as successful with that as he’s been in his current job), announce loudly to the world that we are closing it down, and start the long, painful process of rehabilitating our reputation and institutions.
There are reasons to think that will not happen, unfortunately. For one, the administration is content to dump the whole tangled mess into the next President’s lap with no assistance whatsoever. This week an official was even quoted as saying “The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close Guantánamo.” Trying to straighten out who is a candidate for prosecution and who cannot be held for lack of evidence will have to start from close to square one. The longer it stays open, the more it validates the current policy – and the more the next President owns it. After a year or so the new President’s reputation will already be somewhat invested in it, creating increasing incentive to maintain the status quo.
Which brings up the bigger complication: Any action on the facility almost has to happen very quickly after inauguration day, and even better a plan for closing it announced well before. Transferring all detainees to U.S. soil and processing them would be difficult but not impossible. But a nearly inevitable result would be the release of dozens, maybe hundreds, of innocently held prisoners. They would tell of their time in our custody, and the stories of abuse would have a consistency that all but the looniest conspiracy theorists would understand could not have been coordinated so well and so quickly. There would be calls for immediate prosecution, maybe war crimes trials – here or in absentia abroad. It would cause a political earthquake.
The current Republican nominee would not do that to one of his own. The Democrat is already signaling an unwillingness to cause such turbulence. Not only that, it would appear to be contrary to his political style. If Senator Obama’s FISA and bailout votes are any indication he prefers to work largely in the middle and within discussions as framed (a key reason the extremist GOP rhetoric of the campaign is so laughable and failed to take hold) – even if the framing is done by a corrupt and power-mad President, a sclerotic and insular conventional wisdom or money-drenched and influential lobbyists. Perhaps his background as a Constitutional law professor might make him willing to undertake such an explosive situation right away, but he so far has indicated nothing to that effect. At the moment it looks like the President will make this literally un-American place a continuing part of our national life. Mission Accomplished.