On January 1, 2015, there will be a lot of political speeches about the end of America’s long war in Afghanistan. But behind the rhetoric, the broader war against al Qaeda will still be waged. How will we know? Guantanamo will be open.
President Obama pledged in a recent speech at the National Defense University to continue efforts to close Guantanamo and fulfill a commitment he made during the 2008 campaign. Congress (backed by a majority of Americans) has resisted efforts to close Guantanamo, build a stateside replacement, bring detainees here for trial in civilian courts and even transfer detainees who pose no threat back home or to third countries.
While the president wants Congress to lift all restrictions, lawyers for various detainees suggest that Obama already has the authority he needs to resume the transfer of detainees--but lacks the political will. The issue has become urgent with the widespread detainee hunger strike over existing prison conditions and the halt of transfers.
The administration this week appointed Washington lawyer Clifford Sloan as the new State Department special envoy for Guantanamo. While he will work with other countries on transfers, his primary job is to persuade Congress to close the prison. A comparable Pentagon appointment is still pending.
Guantanamo carries significant strategic costs. The world sees it as a breech of international norms. The military is now force-feeding some detainees, which may be a violation of their human rights.
Guantanamo and the war are inextricably linked. Former State Department legal adviser Harold Koh suggested in a May speech at Oxford that the president declare an end to the “forever war.” Guantanamo was established to house enemy combatants for the duration of the conflict. Absent a war, Guantanamo loses its reason for being.
While there are detainees who can be moved--for example, the Chinese Uighurs who were never enemy combatants and a large group of Yemeni prisoners cleared for release--there are also dangerous people at Guantanamo still awaiting trial. Khalid Sheikh Mohammed, the 9/11 mastermind, is the most prominent among them.
Behind the largely legal fight over Guantanamo is a political battle over the so-called war on terror. After 9/11, there was considerable criticism that the Clinton administration treated terrorism as a law enforcement issue rather than a military threat. The real answer is, it is a political, military and law enforcement challenge.
The United States cannot defeat terrorism. It is a tactic, not an adversary. As Assistant Secretary of Defense Michael Sheehan told Congress recently, we will confront terrorism indefinitely. The open question is whether efforts to manage and mitigate the threat beyond 2014 constitute “war” or something below that threshold.
The legal foundation for the existing war is the Authorization for the Use of Military Force (AUMF) passed by Congress in September 2001. It authorizes military force against those directly responsible for 9/11, and their friends and allies. This clearly covers “core” al Qaeda, which the administration says is on a path to “strategic defeat,” and the Taliban, which just announced a willingness to engage in peace talks.
Legal issues become more complex when it comes to counterterrorism operations beyond Afghanistan and Pakistan. Military and covert intelligence operations overlap. There are active operations in Yemen, Libya and Mali against groups that pose a threat and are affiliated or sympathetic to al Qaeda but did not exist on 9/11. The administration has provided scant details of these activities, which rely more on the international right of self-defense and the president’s authority as commander in chief. Only in conjunction with the president’s recent speech did the administration acknowledge that drone strikes had killed four Americans in Yemen.
One option is to renew the 2001 AUMF and redefine the scope of the ongoing war against al Qaeda and its affiliates. But this would require not only the United States, but also less-than-transparent allies such as Pakistan and Yemen to acknowledge ongoing U.S. operations within their countries. Pakistan provides at least tacit support for drone strikes while claiming publicly they violate Pakistani sovereignty. Yemen has acknowledged U.S. drone operations in general, but sometimes pretends that U.S. strikes are its own.
Another alternative would be to rescind the AUMF–the president highlighted this option in his recent speech–but that would leave the United States in a state of perpetual war. The war would in fact continue, undeclared and unacknowledged. This has long-term implications that even Obama recognizes.
Over the past decade, the United States has strengthened the legal foundations beneath the war on terror, thanks to effective action by all three branches of government. But if the president retains an indefinite and unconstrained ability to wage war--whether we call it that or not--it permanently alters the Constitutional balance of power between the executive and legislative branches on issues of war and peace.
This is something the American people and their representatives should debate. That's why the political battle about Guantanamo is really about how to wage the other war, the one that will continue beyond Afghanistan.