Even if President Obama successfully closes Guantanamo, ironically he may leave behind for future presidents a stronger and more reliable law-of-war detention tool for terrorist enemies than he inherited. If the United States finds itself in another war (technically, an “armed conflict”) with a terrorist group, the president will likely have very dependable and well-tested military detention powers in his arsenal, in part thanks to some of the Obama administration’s efforts.
Closing Guantanamo only makes sense in the context of a broader detention policy that is legally, politically, diplomatically, and strategically sustainable. More important than the location of detention is the legal and administrative process of detention.
For many participants in the debate, therefore, “Guantanamo” is shorthand for a broader set of policies. “Closing Guantanamo,” to many advocates, means ending detention-without-trial. “Keeping Guantanamo open,” to many of its proponents, means continuing to use law-of-war authority to hold captured enemy fighters until the end of hostilities, even if that detention occurs at other sites, and to some it means using military rather than civilian trials to prosecute war crimes.
President Obama has charted an ambiguous middle path between these views. On the one hand, he calls Guantanamo a stain on America’s reputation and anathema to our values. On the other hand, he has implied that his pathway to closing it will include at least some continued detention of al Qaeda leaders and fighters who are not prosecutable yet are too dangerous to release, and his administration has staunchly defended its law-of-war detention powers. In some respects, the surprising result of this incongruous path is that law-of-war detention is now a stronger counterterrorism tool under Obama’s leadership than it was under Bush’s.
First, the Obama administration has helped to bolster mainstream moderate political support for some long-term law-of-war detention. Statements like the president’s 2009 Archives speech regarding the likely need to detain long-term without trial some dangerous Guantanamo detainees gave political credibility to a position that many of the political left (and some of the libertarian right) had been reluctant to acknowledge. Additional legitimacy of at least some detention of enemy terrorists outside the criminal justice system has come from the Obama administration’s improving periodic review processes and emphasizing their fairness and accuracy; its commitment to detention consistent with the laws of war and prohibitions on torture; and Guantanamo skeptics’ increasing awareness that the alternative to detention in some cases may be lethal force or proxy detention by others.