The Obama administration got back in the game on detention policy just in time. The release of its executive order on detention on Monday and the resumption of military commissions came just days before House and Senate Republicans unveiled their own terrorist detainee legislation this week. These new bills have one goal: to destroy President Barack Obama’s efforts to clean up the disastrous Bush detainee policy. There can be no negotiation with political opponents who have this objective. The Obama administration must clearly signal early and often that it will not engage in any talks with Republicans who don’t want to close Guantanamo Bay prison and would make it worse. The White House is in a much better position to resist the GOP proposals with its own policy now on the table.
New House Armed Services Committee Chairman Howard “Buck” McKeon (R-CA) wasted no time in rushing out a Republican response to the Obama administration’s moves. Rep. McKeon’s bill, should it become law, would enshrine Guantanamo as a permanent fixture with vastly increased detention power than ever contemplated during the Bush administration.
The bill would expand the 2001 Authorization to Use Military Force well beyond those terrorist groups connected to the September 11 attacks. It would require any suspected terrorist in the custody of the United States to be held in military detention at Guantanamo. Any level of terrorist activity would now likely carry a life sentence since the bill effectively prohibits the transfer of any detainees out of Guantanamo, either to the United States or to any other country.
Requiring military detention for any terrorism-related offense goes far beyond anything the Bush administration implemented—though it dabbled in this practice with horrible results. The prolonged military detentions of Jose Padilla and Ali al-Marri produced no reliable intelligence information and years of legal battles only to ultimately convict both in a federal criminal court.
Why would Rep. McKeon want to put us through that again for every case of suspected terrorist activity? Not even John Yoo, David Addington, or Dick Cheney dreamt of that.
The bill also expands and makes permanent the restrictions on transfers in current law. That means no Guantanamo detainee could be transferred to the United States, and no Guantanamo detainee could be transferred to a country with a case of so-called Guantanamo recidivism. Onerous security requirements on transfers to third countries without recidivist concerns that have effectively shut off that option are extended, too.
In other words, welcome to the Hotel Guantanamo.
Not to be outdone by their House colleagues, six senators led by John McCain (R-AZ) introduced similar detainee legislation Thursday. The Senate bill forces all suspected terrorists to military detention, eliminates trials in federal court for suspected terrorists, severely restricts or forestalls transfers out of Guantanamo, and expands the president’s war-making powers including the added bonus of the freedom to target specific individuals.
This represents a dramatic reversal for McCain, who said during the 2008 presidential campaign that: “Guantanamo Bay has become an image throughout the world which has hurt our reputation… I would close Guantanamo Bay. And I would move those prisoners to Fort Leavenworth.”
Congressional Republicans dominated the political debate on detention policy for the last two years. They unleashed wave after wave of broadsides while the Obama administration failed to defend its policies. Congressional Democrats finally wore down, overwhelmed by the force of consistent Republican attacks and unsure if the Obama administration would fight back. The Obama administration cannot allow a repeat of this.
The Obama administration’s moves earlier this week allowed it to retake some of the initiative, but congressional Republicans were quick to fire back. Congressional Democrats are now looking for leadership from the Obama administration. The GOP bills are irredeemable and should not be negotiated. Any move to do so would put congressional Democrats in an impossible position and virtually guarantee that this legislation passes in some form.
The Obama administration’s resumption of military commissions and the system of law of war detention at Guantanamo already represent major compromises. In response, congressional Republicans want to restore and make permanent some of the worst aspects of the Bush detention policy. Compromise only makes sense when both sides negotiate in good faith. Congressional Republicans, however, demonstrate no intention of finding the best policy. They are only interested in defeating President Obama.
The Obama administration needs to stand firm. It should not make any more concessions on detention policy and make clear that the Republican bills represent an unwelcome return to the dark days of President George W. Bush.
Ken Gude is the Managing Director of the National Security and International Policy Program at American Progress.
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