A Way Out of Guantanamo Bay
As the White House ponders how to respond to the Supreme Court's rebuff last week in the Hamdan case, officials are studying an often-overlooked recommendation of the Sept. 11 commission, which urged that "the United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists."
To the White House in the months after Sept. 11, 2001, this idea of collaborating with allies on common anti-terrorist legal rules was anathema, and it still has plenty of enemies within the administration. But President Bush is obviously tired of taking flak about the U.S. prison at Guantanamo Bay every time he travels abroad, and he seems to mean it in his repeated statements that he would like to close Gitmo. The question is how to do that in a way that preserves U.S. security.
Administration officials recognize that they face a fork in the road after Hamdan v. Rumsfeld , in which the Supreme Court rejected the administration's plan for military tribunals with limited rights for defendants. They can craft a minimalist response, which would seek congressional authority for the tribunals or amend the Uniform Code of Military Justice to provide rules for a system of courts-martial. Or they could try a broader approach, which would seek to ground detention and trial of suspected terrorists within Common Article 3 of the Geneva Conventions.
The post- Hamdan debate involves some long-standing divisions within the administration over anti-terrorism policy. On one side are Secretary of State Condoleezza Rice and her advisers, who believe that Guantanamo has become a dangerous rallying point for anti-Americanism. On the other are conservative administration lawyers, led by Vice President Cheney's chief of staff, David Addington, who worry that any attempt to involve Congress or international lawyers in writing new rules would produce an unworkable legal mess that would endanger U.S. security. In the middle, seeking to resolve the issue over the next several weeks, are Stephen Hadley, the national security adviser, and Joshua Bolten, the new White House chief of staff.
Bush's comments about closing Guantanamo suggest that he wants to turn a page. But as sometimes happens with this administration, the debate isn't over until it's over -- and even then it isn't over. That was the case with the McCain amendment banning harsh interrogation. The president signed the law and then appended a signing statement saying that his executive power wasn't bound by such limits, then made a public statement indicating that despite the signing statement, he would follow the law. Confused? So is the CIA, which is said to have stopped interrogating terrorist suspects altogether until the rules are clarified.
The Sept. 11 commission's recommendation noted that stateless terrorists were outside the normal rules of law and suggested, "New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict." Champions of this approach include Rice's counselor, Philip Zelikow, who was previously staff director of the Sept. 11 commission, and State Department legal adviser John B. Bellinger III.
Even the snippiest Europeans seem more open these days to working with the United States to solve real-world problems involving terrorist detainees. Manfred Nowak, the U.N. special envoy on torture, said last month that Europe should help the United States close Guantanamo, explaining: "You can't only criticize without then assisting them in solving the problem." John Reid, then Britain's defense minister (now home secretary), said in April that closing Guantanamo should be linked to a larger effort to rewrite the Geneva Conventions to deal with 21st-century terrorist conflicts.
The clearest sign of European-American common ground on closing Guantanamo was the surprising comment last month of Austrian Chancellor Wolfgang Schuessel when he met with Bush in Vienna. "We have a legal problem, we have gray areas," Schuessel said, echoing the administration's own views. "We have to help if we're to find a way-out strategy," he added.
Close Guantanamo? After the bruising global debates of the past four years, the Bush administration finally seems to agree with its sharpest critics that Gitmo is more pain than gain. At the same time, there's growing international recognition that the problems America has struggled with at the prison -- how to detain, interrogate and try suspected terrorists -- are real ones.
The Hamdan decision has opened a path toward the kind of global consensus about anti-terrorism policies that the Sept. 11 commission envisioned. This is a rare moment to begin fixing something that has gone dangerously wrong. After Hamdan , Bush has a chance to take a decisive step back toward an international rule of law -- and to solve America's biggest image problem at the same time.