After Guantanamo

By David B. Rivkin Jr. and Lee A. Casey
Wednesday, July 2, 2008

The Guantanamo Bay detention facility's days are clearly numbered. John McCain and Barack Obama have said it should be closed, and even President George W. Bush would like to see it abandoned.

Whatever legal benefit Guantanamo offered for being offshore has been largely eliminated by the Supreme Court's decision in Boumediene v. Bush, which extended American constitutional protections to the foreign fighters held there. That decision has created new and vexing legal and practical problems for the U.S. military. Here are some of the issues:

- Habeas games: The Supreme Court has now taken a central role in deciding who may be captured and detained as an enemy combatant , ruling that detainees, akin to criminal defendants, are constitutionally entitled to challenge their confinement through "habeas corpus" proceedings in federal district courts. The court's reasoning extends far beyond how "unlawful enemy combatants" like the Guantanamo detainees are treated. Legitimate prisoners of war in a future conventional conflict – who now receive less legal process than the detainees at Guantanamo – also can demand habeas proceedings. Thus, American forces, if they wish to be sufficiently certain of holding enemy prisoners anywhere in the world, must set about securing CSI-style evidence to satisfy the judges that their captives are indeed what they seem to be – enemies in arms against the United States.

Collecting this evidence on the battlefield will cost lives and impair combat effectiveness. Moreover, the need to litigate habeas proceedings, particularly when applied to a large body of prisoners, will impose great additional burdens on the U.S. military, which is already stretched thin by the demands of global operations. One example: Operations in Guantanamo had to be fundamentally recast to accommodate hundreds of detainee lawyers and their support personnel.

It is deplorable that American forces can no longer detain captured enemy combatants without a burdensome judicial process. But Congress cannot fix the problem by legislating new limits on detainee due-process "rights." Until the Supreme Court's balance changes and Boumediene is overruled, the armed forces will be driven to a tragic "catch and release" policy. The most senior enemy operatives, assuming enough evidence can be collected, will be tried for war crimes before military commissions. Others will be taken into custody, interrogated, and then transferred to the custody of allied governments – or even set free in the theater of action after they have been disarmed.

- Processing Guantanamo detainees: With respect to the 270 or so Guantanamo detainees, some are being, or will be, tried by military commissions for war crimes. The Court's Boumediene decision should not prevent those trials from going forward. Indeed, they should be accelerated, and all enemy combatants in U.S. custody, against whom sufficient evidence of war crimes exists, should be brought expeditiously to trial. But for many of those not slated for these trials, habeas proceedings may well result in a release order if the government does not have sufficient evidence to satisfy a civilian judge as to their enemy combatant status.

This is the only area where Congress can and should promptly act. It may be that a handful of detainees deserve "parole" into the United States on humanitarian grounds, but none of them have a right to enter, even if a federal court does order their release. Where such parole is inappropriate, Congress should establish a category of detention that permits aliens not otherwise lawfully admitted to this country to be held until a suitable foreign government can be found to accept them, however long that may be.

Under current law, aliens in the U.S. without a lawful basis for being here, and for whom no receiving country can be found, can only be held up to six months. The Constitution grants Congress plenary authority over questions of immigration and nationality and the Supreme Court has – so far – respected that authority.

- Prison for Guantanamo detainees: That leaves the problem of what to do with those Guantanamo detainees who cannot be repatriated but who a habeas court determines can be properly detained. For all of the real diplomatic costs incurred over Guantanamo, that base was admirably suited to house captured enemy combatants. It is under complete U.S. control, far from any active battlefield, and it is isolated from nearby civilian populations – largely thanks to the surrounding "workers paradise" run by the Castro brothers. In short, the base is easily secured and presents no "host nation" or "not in my backyard" issues. It is those issues that make Guantanamo's prompt closure a bigger problem than almost anyone imagines.

Although many members of Congress (mostly Democrats hostile to Mr. Bush) have decried the detainees' fate at Gitmo, few have offered their states or districts as a suitable alternative, and chances are none will. Last July, a Senate resolution opposing transfer of Gitmo detainees "stateside into facilities in American neighborhoods" passed 94-3 (with Sen. Obama abstaining). The detainees' lawyers may claim that they are mostly innocent aid workers, supposedly sold to U.S. forces by unscrupulous Afghan or Pakistani bounty hunters, but our representatives in Congress know better. Transferring the Guantanamo detainees to the U.S. would create a security problem of unrivaled character. The new location would immediately become a particular target for al Qaeda and other jihadist groups.

The logical place to hold them, of course, would be the Military Disciplinary Barracks at Fort Leavenworth, Kan. But, unlike Guantanamo Bay, Fort Leavenworth is not isolated from the surrounding civilian population. It is very much a part of the communities of eastern Kansas and western Missouri. Other alternatives, such as the old federal prison on Alcatraz Island, are also surrounded by population centers.

For that very reason it is Congress that must make the decision where to put the detainees. If that is to be Fort Leavenworth , then the Kansas and Missouri delegations must have the opportunity to speak on the subject in the House of Representatives and the Senate. Neither President Bush nor his successor, Democrat or Republican, should act without a full and complete congressional debate on the subject, and legislation establishing the new locus for detainee operations.

Mr. Bush has taken much on his own shoulders in keeping the U.S. safe since 9/11. He has often been criticized for not consulting Congress or obtaining legislation, and has been equally vilified when consultation and legislation have been secured. This is one issue where both law and reason suggest the president should bring Congress into the decision-making process early, so that it can bear its full and fair share of responsibility for the consequences.