Two days after his much-heralded inauguration, President Barack Obama issued three executive orders that effectively ended military commission trials at the Guantánamo Bay detention facility. Claiming that this action was “consistent with our values and our ideals,” Obama strove to cash in on one of his most pressing campaign promises. Upon signing the orders, Obama also claimed that Guantánamo “will be closed no later than one year from now,” a statement that drew loud praise from the liberal sphere.

Nevertheless, more than two years after this proclamation, Guantánamo Bay is still operational, and the
Obama administration recently reversed its once forceful decision to terminate military tribunals. On March 7th, President Obama signed a new executive order reauthorizing military commissions, claiming that “all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation.” This policy reversal should be welcomed and supported since it provides the most judicious and fair way to prosecute captured terrorists while also placing the safety and security of American citizens above the bickering that characterizes international human rights politics. Both pragmatically and legally, President Obama has made the correct decision in reauthorizing military commissions at Guantánamo Bay.

One of the most commonly overlooked arguments in support of military commissions is actually quite simple: the federal judiciary system is ill equipped to handle trials of terrorist operatives. Federal courts have far stricter conditions for what can be considered “admissible evidence,” an unnecessary and unusual precedent for the prosecution of terrorists. Hearsay evidence, while admissible in military tribunals, European criminal courts, and international courts, is one of the most valuable pieces of evidence that interrogators can wean from captured terrorists, yet it is not admissible in US federal courts. While such a standard may be acceptable for domestic criminal trials where evidence is far more abundant, there are generally very few eyewitnesses willing to testify at hearings for suspected terrorists because they rightfully fear strong and terrible retribution. We only need to look as far as the frightening 9/11 footage to see that al-Qaeda has no issue ruthlessly and indiscriminately murdering innocent civilians.

Certainly, their retribution would be far greater against those who have actively worked to defy them.
Beyond this justifiable fear, however, most of the witnesses from whom we have obtained evidence are terrorists, leading to countless obstacles to get these witnesses to stand trial. Terrorists are obviously unwilling to testify publicly against fellow terrorists, yet it would be reckless not to provide hard evidence simply because the witness is unwilling to take the stand. Furthermore, many of these witnesses are harbored by or hiding in foreign countries, making the procurement of their testimony all the more difficult. Even if the governments of the Middle East were willing to aid us by extraditing the terrorist witnesses to the U.S. for trial, it is doubtful that they have the political will or the institutional strength to successfully find, capture, and transport these witnesses.

In addition to these logistical reasons, military tribunals are considered legal under the Geneva Conventions, a fact voiced often by President Bush and now, albeit somewhat reluctantly, accepted by President Obama. The legal issue surrounding military tribunals stems from the Third Geneva Convention, which grants prisoners of war (POWs) the right to habeas corpus, counsel of their own choosing, and the right to appeal a court’s decision. While under the current system of military tribunals none of these rights are conferred to the most dangerous terrorists, a close reading of the treaty reveals that the United States is actually not required to do so. According to the Third Geneva Convention, POWs are defined as “members of the armed forces of a Party to the conflict” that carry their arms openly and have “a fixed distinctive sign recognizable at a distance.” Terrorists, who forgo uniforms and make concerted efforts to disguise themselves as civilians, do not fulfill these requirements and are therefore not granted the legal rights conferred to POWs. The United States is still bound by Common Article 3 of the Geneva Conventions to abstain from “cruel treatment and torture,” but certainly military tribunals could not be described as “torture” in any sense of the word.

While international treaties are legally binding, seeing as they are given status as “the Supreme law of the land,” they cannot require us to violate other portions of the Constitution. Fortunately, the Supreme Court has upheld military tribunals on multiple occasions, deeming them consistent with Constitutional war powers and legal precedent. In Ex parte Quirin, the Court unanimously upheld President Roosevelt’s decision to try eight self-proclaimed Nazi spies in military tribunals, one of whom was even an American citizen. In the decision, the Court ruled, “Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals.” In 2004, the Court ruled in Hamdi v. Rumsfeld that the 2002 Authorization to Use Military Force against Iraq (AUMF), which granted the President the right to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the 9/11 attacks, also authorized military tribunals while the United States was actively engaged in combat. The Court commented, “ . . . enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive,” and they even went so far as to argue, “Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding.” As is evident by judicial precedent from the nation’s highest court, military tribunals are an acceptable, and oftentimes the most practical, procedure by which terrorists can be tried in a court of law. There is no legal reason, given the nature of terrorist operations and the strong precedent set in our judiciary, that terrorists should not be tried in military tribunals.

There are, however, other criticisms levied against military tribunals. Specifically, former detainees such as Majid Khan have argued that military tribunals encourage the use of “enhanced interrogation techniques,” which constitute torture. Torture, in all of its forms, is illegal under both the Constitution and our obligations to the Geneva Accords, so its use cannot be tolerated in any circumstance. In fact, studies have shown that torturous coercion is a wholly ineffective interrogation technique because the victims will probably just admit to crimes they have never committed in order to please their interrogators. Furthermore, torture at home could feasibly endanger our troops abroad by enraging an already elusive and dangerous enemy. For these reasons alone, not even considering the strong moral implications, the United States should not engage in torture if it is to be effective in its obtainment of information from terrorists.

Both Guantánamo and their military tribunals are conducted in a humane manner Detainees at Guantánamo are granted exemplary health benefits and facilities—certainly better care than they would be receiving anywhere else in the world. While some would contend that Guantánamo as a concept is illegal and morally repugnant, we unfortunately live in an age where the rules of warfare have changed. To send these detainees back to their home countries would essentially be granting their release; it has been proven that Middle Eastern prisons, especially those in Yemen, are undeniably porous. As unfortunate as it may be, the nature of our enemy requires that we maintain their imprisonment, it is crucial that we do not allow for any risk of safety of Americans on the presumption that these terrorists will remain in captivity.

The United States, as a nation of sovereign people, has its greatest responsibility to protect and defend the citizens that grant it legitimacy and power. Military tribunals are a strong component of this defense because they allow the government to try terrorist operatives efficiently without imperiling the federal court system. Legally, there is little justification for those who oppose military tribunals, since the reckless and violent manner in which terrorists wage war has stripped them of their POW status under the Third Geneva Convention. Finally, U.S. constitutional law has upheld military tribunals as an effective means to try and convict guilty terrorist operatives while the United States is engaged in activity military combat as it is today. It should be of great comfort to all Americans that President Obama has reevaluated his campaign rhetoric to adopt these tribunals as a legitimate way to try to convict terrorists, thereby increasing the United States’ capacity to contain and eliminate one of the greatest threats to its national security.

Few subjects over the past eight years consistently occupied as much airtime and fueled as much political debate as the Guantanamo Bay conundrum. The topic’s salience originates from its association with a host of other hot-button issues. Deliberations over the boundaries of executive privilege, the suitability of harsh interrogation techniques, and the transformative nature of the War on Terror all converge on the Guantanamo narrative.

At the same time, the nuances of the story have dramatically changed since President George W. Bush first designated the naval base as a detention facility for terrorism suspects. Since then, the United States has ordered the release or transfer of over 500 prisoners, with fewer than 250 inmates remaining in custody. And the Bush Administration decided all but a handful of these cases. Whereas the federal government once lauded the facility as a formidable icon for progress in the War on Terror, Guantanamo Bay now represents a political liability and ethical offense for the growing contingent of government officials that have demanded its closure. This movement gained traction when President Barack Obama, freshly inaugurated, issued an executive order to close the facility by January 2010. Yet there remains much wrangling over where to relocate detainees and how to fulfill this mandate. Furthermore, many Congressional Republicans continue to oppose plans to close the prison camps in an effort strongly reminiscent of Bush-era drumbeating.

But there exists only one viable direction for deliberations over the Guantanamo issue. Lawmakers must put their full support behind the President’s decision to end this eight-year nightmare. If the United States is to have any hopes of demonstrating to the world that it has charted a new course, then closing this detention facility in a timely manner must remain a foreign policy priority. Guantanamo’s turbulent beginnings and sinister past offer only half of the incentive for taking action. While there is enough cause to close down the facility purely based on previous wrongdoings, officials should also seize this opportunity to use the closure as a symbol of America’s new ideological direction. And despite what many opponents would suggest, this task is not so complicated.

At the heart of the historical controversy over Guantanamo is the original intent of the Bush Administration to establish a military prison unconstrained by domestic or international law—an objective that served as the catalyst for ensuing abuses. As classified terrorists, inmates were denied Geneva rights and basic Constitutional protections. The Supreme Court and legal scholars alike have since debunked the legitimacy of that proposition.

Aside from the nuances of their legal status (which are beyond the purview of this paper), the more compelling argument for closing Guantanamo is that very few of the detainees should have ever been incarcerated. David Remes, a Harvard-educated lawyer who left an elite position at Covington & Burling to represent detainees, often speaks about the sobering experience of representing Gitmo detainees. In a special lecture at Princeton in April 2009, Mr. Remes emphasized the fact that the US military captured only 5% of the prisoners at Guantanamo Bay. Many of the remaining 95% were delivered by bounty hunters, who often subsequently received a few thousand dollars for each suspect.

Oftentimes, the basis of the accusation rested on the alleged sighting of the suspect in unsavory company. In slightly more substantive cases, soldiers were arrested on the battlefield for actually fighting alongside the Taliban. But even this justification for detention is not entirely logical. As Mr. Remes acknowledged, Afghanistan has been embroiled in a civil war for over a decade between the Northern Alliance and the Taliban. In short, the lines of this conflict had solidified before American involvement. For simply declaring allegiance to one side over another in a preexisting conflict, a soldier could be detained and sent to Guantanamo as a terrorist and enemy of the United States. Nevertheless, the Bush administration convinced the public that these men were at the helm of a global conspiracy, as Vice President Dick Cheney declared them “the worst of a very bad lot” and insisted that they “are devoted to killing millions of Americans.” A far cry from fulfilling the dangerous mastermind conception, the average Guantanamo prisoner is an underweight Yemenite who was delivered into US hands, by an enemy or rival, for a cash reward. Typically, the detainee speaks no English and had never encountered an American prior to his arrival at the military base.

The testimonies and anecdotes of prisoner abuse have been constant. By what authority did the United States arrest, brutalize, and psychologically torment these men without substantive evidence of their wrongdoing? The most straightforward answer is that the federal government took this course of action because President Bush needed to create the semblance of accomplishment in the War on Terror and impoverished Middle Eastern countries were powerless to stand in the way of this goal. But the rest of the world has since denounced this injustice, and Guantanamo has become a universal symbol of American tyranny.

Nevertheless, with a new administration comes the opportunity to revamp the national image. For his part, President Obama has wholeheartedly embraced this obligation. In a 50-minute address at the National Archives in May, Mr. Obama spoke about Guantanamo with a renewed energy. Beyond a simple pledge to close the detention facility, the speech represented a profound ideological departure from US doctrine over the past several years. The President spoke plainly about the corrosive effect of the Guantanamo legacy, and also of the dangers of stagnation: “I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As president, I refuse to allow this problem to fester. Our security interests won’t permit it. Our courts won’t allow it. And neither should our conscience.” For the first time in a long time, an American president acknowledged that morality has a place in foreign policy and that our national security is not predicated on a disregard for civil liberties. Of course, President Bush made Wilsonian overtures of peace and democracy, but these gestures were frequently delivered at the end of a bayonet. And although former President Clinton’s efforts in Bosnia and Somalia were guided by feelings of altruism, President Obama is the first commander-in-chief since Jimmy Carter to prioritize humility and restraint in his worldview. Such a philosophy is part of what New York Magazine refers to as Mr. Obama’s greater attempt to “change our conception of both ourselves and our country, as well as the way outsiders perceive us.” Swift rectification of the Guantanamo issue would offer the reprieve that President Obama seeks for this country’s moral standing.

Republicans and Democrats alike belabor the administrative difficulties of transferring and releasing detainees, but there are several viable options for lawmakers to choose from, should they ever become serious about supporting the President’s agenda. One concern with repatriating inmates to countries like Yemen—known to be somewhat lax on terrorism—is that they would become an attractive pool of recruits for organizations like al Qaeda. But US allies like Saudi Arabia have agreed to adopt part of the prison’s Yemenite population. The Obama Administration has also made arrangements to transfer detainees to a host of European countries including France, Portugal, and Italy. At the same time, the United States must also be willing to accept a sizeable share of Guantanamo’s inhabitants. As the principal architect of this quagmire, the US has an obligation to rehabilitate and provide for these inmates until further provisions can be established. For the handful of detainees that are truly dangerous, facilities similar to the Supermax prison in Florence, Colorado remain realistic options. While many politicians vehemently protest the possibility of absorbing suspects connected to the ominous War on Terror, The Denver Post reports that Governor Bill Ritter “supports the idea” of bringing them to his state, declaring that “Supermax was built to handle exactly this type of inmate.”

However, this position stands in stark contrast to the arguments of a contingent of the Republican Party, which has hyperbolized the risks of housing detainees on American soil. The Washington Post has covered the efforts of Congressional Republicans to dissuade residents of Standish, Michigan (a site that has made President Obama’s most recent shortlist) from advancing plans to transfer inmates to a local facility:

At the time, [tavern owner] Munson said he saw the idea as an economic lifeline for the town and the prison, which provides more than 300 jobs. Then he met U.S. Rep. Peter Hoekstra (R-Mich.) at a cocktail party and quickly changed his mind. ‘He told me things that really scared the heck out of me,’ Munson said. ‘He told me about soft targets and safe zones, that if they came to this country they would have rights, visitors and friends would come who could be jihadists.’
Politicians that espouse the beliefs of Rep. Hoekstra, who serves as the ranking Republican on the House Intelligence Committee, assert a moot argument. Yes, some of the detainees at Guantanamo are dangerous. Yes, these particular men should not be released into society. Yes, they would pose a threat to ordinary Americans if permitted to roam freely. But, as Governor Ritter noted, federal penitentiaries are equipped to deal with such people. One would be hard pressed to explain why our prisons would be wholly unfit for Guantanamo inmates, considering that these very facilities have secured the public against drug traffickers, mafia bosses, and deadly terrorists like Timothy McVeigh.

The closure of Guantanamo Bay stands out as one of President Obama’s most worthwhile foreign policy initiatives, yet only six Democrats voted in favor of the May 2009 bill to appropriate funds for this cause. The President’s difficulty in garnering congressional support is reflective of a broader problem in the political landscape: as with healthcare, Democrats have failed to unify under a common ideology. The Wall Street Journal is one publication that has exposed this embarrassing deficiency, detailing how Senate Majority Leader Harry Reid and other well-positioned liberals have equivocated on the issue. Until Mr. Obama’s party is able to overcome internal squabbling, many significant problems will be left unresolved. And the change that Americans so eagerly sought in the aftermath of the Bush Administration will become an unfulfilled promise.