During the 2008 presidential campaign, Barack Obama soundly criticized the Bush Administration's execution of the war on terrorism, especially the use of the detention facility at Guantanamo and the manner of interrogations conducted there. (1) The counterterrorism policy that then-Senator Obama described was robust--he declared willingness to order American military forces to take action in Pakistan upon receipt of "actionable intelligence" if Pakistan were unwilling to act (2)--but distinct from the policy then in place.
As President Obama has now surpassed the two-year anniversary of his inauguration, it is an opportune time to compare his administration's counterterrorism policies with those of his predecessor. In a different symposium article, I concluded that there are high-level similarities between the policies of the two presidents. (3) Among the areas of agreement are the policies that military force is an appropriate (but not the only) tool for responding to al Qaeda, and that indefinite military detention of suspected al Qaeda and Taliban fighters is lawful.
George Santayana famously wrote, "Those who cannot remember the past are condemned to repeat it." (4) If President Obama has largely followed his predecessor's counterterrorism policies--including the continuing use of the detention facility at the U.S. naval base at Guantanamo Bay, Cuba--then it is fair to consider whether he is repeating the mistakes of the Bush Administration. To be clear, the "mistakes" discussed in this paper are ones of law and not of politics or military strategy. Reasonable minds can disagree about the wisdom of the 2007 "surge" in Iraq, President Obama's decision to withdraw all U.S. combat brigades from Iraq in August 2010, or his decision to increase the number of U.S. combat troops in Afghanistan. (5) but proper evaluation of those decisions lies outside the realm of legal analysis.
This Article provides a critical assessment of the various legal issues arising out of the Bush and Obama administrations' use of Guantanamo Bay as a detention facility for captured al Qaeda and Taliban fighters, as well as related proposals to prosecute the detainees in either military commissions or federal courts. President Obama has followed many of President Bush's policies, though in some areas (such as advocating the use of federal court trials) he has charted a new course. Examination of each discrete legal issue reveals that some of the legal criticisms of the Bush Administration's Guantanamo policy were wrong, and therefore the Obama Administration has not erred legally in continuing the course. In other areas, President Obama has rightly changed policy to avoid practices, such as waterboarding, that were regarded by many as of questionable legal validity. President Obama has thus avoided some of the past mistakes of the Bush Administration, but he has also arguably made new ones. President Obama's bold campaign promise to close the detention facility at Guantanamo Bay within his first year in office has become an albatross around his neck with no prospect of fulfillment anytime soon. (6) His Justice Department's proposal to prosecute several high-level al Qaeda detainees, including the suspected 9/11 mastermind, has passed its one year anniversary and has managed only to generate bipartisan opposition. (7)
Part I of this Article identifies and analyzes whether different aspects of the government's Guantanamo detention program can be characterized as legal mistakes. Part II then develops the central thesis that President Obama's Guantanamo mistakes stem from the absence of a clear strategy for integrating military force and law enforcement in responding to the threat posed by al Qaeda. To be sure, the Bush Administration's policy suffered from a similar flaw. Whereas President Bush's policies reacted and overreacted to 9/11 with a short-term, "ends justify the means" approach, President Obama's policies appear in large measure to be a reaction and overreaction to President Bush's policies: "anything but Bush," in many respects.
IDENTIFYING AND ANALYZING OLD AND NEW MISTAKES
There is little doubt that the detention facility at the Guantanamo Bay naval base has contributed significantly to a negative worldwide impression of the United States's armed conflict against al Qaeda. But to call Guantanamo a mistake obscures the exact nature of the mistake or mistakes that one has in mind. Was the mistake the detention without criminal charges of several hundred suspected al Qaeda and Taliban fighters? (8) Was it the abusive and coercive tactics used in interrogating numerous detainees? (9) Was it the failure to implement any formal process to ascertain the combatant status of detainees until the summer of 2004? (10) Was it taking aggressive legal positions, such as the argument that federal courts lacked jurisdiction over the naval base because it was outside the United States? (11) Or was the mistake a new one: President Obama's failure to carry out his promise to close the Guantanamo detention facility within his first year in office? Was the Obama Administration's insistence on federal court prosecutions for high-level al Qaeda suspects a mistake? Part I evaluates the legal issues underlying each of these potential mistakes, primarily from the perspective of whether President Obama appears to have learned from his predecessor's experiences.
Detention Without Charges
Because President Obama has yet to close the detention facility at Guantanamo Bay, there were still almost two hundred detainees at Camp Delta as of February 2011. (12) Although a small number of detainees have been designated for prosecution in military courts, most remain uncharged. (13)
During the early days of the armed conflict in Afghanistan, critics of the Bush Administration--primarily human rights groups, but also various European officials--decried the detention of suspected al Qaeda and Taliban fighters absent criminal charges. (14) Although this policy was controversial, it is far from clear that it was legally mistaken. In Hamdi v. Rumsfeld, (15) the Supreme Court upheld the President's authority, when augmented by congressional authorization for the use of military force, (16) to detain even U.S. citizens as "enemy combatants" without the need to bring criminal charges against them. (17) Justice Scalia wrote in dissent that the Constitution prohibited the indefinite military detention of an American citizen, and that the President's lawful options were to charge the citizen-detainee with a crime such as treason, release him, or seek congressional suspension of the privilege of habeas corpus. (18) To be clear, Hamdi was detained at a naval brig in Virginia, not at Guantanamo Bay, and Justice Scalia's position relied crucially on Hamdi's American citizenship. As for the Guantanamo detainees, Justice Scalia's dissent in Rasul v. Bush argued forcefully that as aliens outside U.S. territory, they had no legal recourse to challenge their detention in U.S. courts. (19) Thus, Justice Scalia's objection to military detention of Hamdi was based on the unusual circumstance of his American citizenship and not a generalized objection to military detention of suspected al Qaeda or Taliban fighters.
The absence of an international equivalent of the Hamdi decision makes it harder to demonstrate conclusively that President Bush's decision to detain captured al Qaeda and Taliban fighters as enemy combatants was not a mistake. Nevertheless, there are reasons to doubt that indefinite military detention of such persons is a per se violation of international law. The International Committee of the Red Cross has, after a five-year study, concluded that in a noninternational armed conflict--which is how the Supreme Court characterized the war against al Qaeda in Hamdan v. Rumsfeld (20)--members of nonstate groups can be targeted as combatants where they have a "continuous combat function." (21) Targeting is not the same as detaining, (22) but it would be anomalous to allow a nation to shoot non-state actors engaged in a continuous combat function but not to detain them should they be captured.
President Obama has not deviated from his predecessor's legal position regarding the legality of military detention of non-state actors such as al Qaeda members. It does not appear to have been a legal mistake, as domestic law clearly permits the President to detain persons pursuant to the Authorization for Use of Military Force (AUMF), and international law appears to permit it as well.
Abusive and Coercive Interrogation Tactics
Stories about the abusive and coercive interrogation tactics used at Guantanamo Bay (23) (and their comparison to the abuses that occurred at the Abu Ghraib prison in Iraq with disastrous consequences) (24) no doubt played a significant role in inflaming public opinion about the detention facility. Other rumored mistreatment, such as the deliberate destruction of copies of the Koran, did not occur, was not substantiated, or was exaggerated or otherwise wrongly described, but was so incendiary as to add to the outrage over Guantanamo. (25) (Waterboarding, or simulated drowning, does not appear to have been used at Guantanamo, only in secret prisons operated by the Central Intelligence Agency (CIA) in Eastern Europe.) (26)
The Bush Administration sought, and obtained, legal opinions regarding the legality of the CIA's so-called enhanced interrogation techniques from the Office of Legal Counsel (OLC). The infamous "Standards of Conduct for Interrogation" memorandum authored by then-Deputy Attorney General John Yoo, which was not publicly released until 2005, opined that interrogation tactics might constitute degrading conduct but not torture so long as they did not cause physical pain equivalent to that caused by organ failure. (27) However, when Jack Goldsmith took over as Assistant Attorney General for OLC, he withdrew the Yoo memorandum because...