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Can President Obama and Congressional Republicans Reach a Deal on Guantánamo?

Benjamin Wittes

Is there a deal to be done between President Obama and congressional Republicans on Guantánamo?

On the surface, the prospects don’t look good. Congress has slapped a series of impediments on detainee transfers from the base. In issuing his Executive Order to create a review process for Guantánamo detainees this week, Obama attempted to circumvent the legislature on a matter on which it has a keen policy interest. And House Republicans have now responded by introducing legislation that would impose serious new constraints on Obama’s maneuverability with respect to detainee policy more generally. On the face of things, the prospects for consensus look pretty bleak. We seem, rather, to be heading for confrontation.

Yet the picture may be less bleak than it seems. There are two reasons for very cautious optimism. The first is that both the administration and congressional Republicans are committed to making policy in this area, and that dual commitment will force them to negotiate. Neither side can afford to ignore the other. Both can frustrate the other’s objectives, and that may force a measure of accommodation.

The second reason for optimism is that for the first time, nearly everyone is talking about a common policy objective: A legal framework for detention policy. To be sure, the administration and congressional Republicans are talking about very different frameworks. Broadly speaking, the administration wants flexibility to detain members of enemy force but also wants flexibility to try them in federal court and flexibility to transfer them overseas when, in its judgment, detention is no longer necessary. Conversely, congressional conservatives are pushing a framework in which it is much harder to get rid of people, harder to bring them to trial in federal court, and in which military detention and trial are thus the only real options. But at the end of the day, both sides are talking about forms of institutionalization of detention authorities. We are no longer debating whether to engage in non-criminal detention. We are negotiating over the price.

This is actually progress, and it gives rise to the possibility of a mature compromise between Obama and the Congress. The compromise, a truly bipartisan detention policy, would look something like this:

First, Obama would need to read the writing on the wall and face squarely the reality that Guantánamo Bay is not going to close. This is a reality that the administration all but accepts—but not quite. The failure to accept it fully widens the field of conflict with members of Congress who have developed a fierce commitment to keeping Guantánamo, and an even fiercer commitment to not bringing detainees to the United States. Obama has shown that he is not willing to use the powers of his office to make Guantánamo’s closure happen, and Congress has shown that it is willing to use its power to make sure closure doesn’t happen. As long as that’s true, Guantánamo will remain. The sooner the administration accepts this, the sooner it can focus its attention on the interests it really does care about: Protecting the ability to conduct civilian trials where appropriate and protecting the ability to transfer those it does not want to hold to third countries.

Second, congressional leaders would need to stop encumbering transfers from Guantánamo. Maintaining the facility is not the same thing as insisting that virtually every detainee there now will remains there forever. Figuring out whom one really needs to hold is a key part of detention policy. It is hard. There will be mistakes. But that can’t mean we decline to make choices and exercise judgment.

Third, both sides would have to agree that the right way to ensure that there are relatively few mistakes in releasing people is by putting together a serious review process and then letting it do its work. This is what the Executive Order is supposed to produce, and while congressional Republicans have legitimate concerns about recidivism and releases to certain specific countries, they too have argued for a serious review process. In other words, the dispute between them is really over the contours of the review process, not the fact of one. Writing the Executive Order into law, and inflecting it with congressional concerns, offers a means of managing risk without encumbering the Executive Branch’s ability to manage a population of detainees not all of whom it wants to hold.

Fourth, the basic authority to detain the enemy would be codified in statute as well. Interestingly, this is an area in which congressional Republicans and the Obama administration are rather close. The bill introduced today by House Armed Services Chairman Buck McKeon contains language on this point that is virtually identical to the position the administration takes in litigation.

A bill along these lines is a long-shot, but it is not unthinkable. It may be the fall-back position with which both the administration and majorities in Congress can live.

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