As human-rights advocates and most civilized nations around the world celebrate the order from President Obama to shutter Guantánamo, it seems few are asking an all too crucial and controversial question: Could it have worked? Shouldn't it have become an important and useful military detention center rather than merely another symbol of the disdain the Bush administration demonstrated for the rule of law?
News that Said Ali al-Shihri, a released detainee, has become a leader of Al Qaeda in Yemen serves as a reminder that some of the "worst of the worst" really are, and were, housed there. That's not just Bush team evil-doer hyperbole. It's really not just another prison. But the Bush administration's version of Guantánamo, was not, is not, and should not be, the only option. That administration's false choices of evil versus good need be rejected in favor of a tough but more nuanced approach.
The failings of the Bush administration do not change the fact that a new facility outside of the United States is, and should be, evaluated to house and secure certain terror suspects captured abroad.
There is no question the facility, as it currently exists, had to be closed. In their zeal to protect the country from "new attacks," the Bush team offered critics a mass of moral and legal ammunition to fire at every turn. They tortured detainees, included American citizens in what was supposed to be a prison for foreign fighters, waited years before initiating military tribunals, and then attempted to deny them access to lawyers and evidence. Again and again, the Bush administration was reined in by the very courts that they repeatedly claimed should have no jurisdiction over the facility. Guantánamo came to reflect the Bush team's utter disregard for law in general—a sort of microcosm of their misguided faith in the absolute power of the executive branch.
But what if?
What if from Day One the Bush administration had agreed that the Geneva Conventions should apply to all the prisoners? What if they had quickly initiated a fair military tribunal? What if they had treated the prisoners humanely? What if they had really worked with legal groups at the outset to establish rules and regulations? And what if they had enacted necessary changes as time passed rather than having them forced upon them by the courts?
For one thing, we would not now be in the odious and agonizingly difficult situation forced upon us by that administration in which we cannot try alleged 9/11 mastermind Khalid Sheikh Mohammed and perhaps others in any genuine court—civilian or military—since our water-boarding and who knows what other types of torture make a trial nearly impossible. Nonetheless, the new administration is right in recognizing that while a civilian trial or the release of many Guantánamo prisoners should be the norm, not all prisoners can be so treated. Ongoing deliberations within the Obama administration are rightly addressing the issue of whether some sort of military tribunal might properly administer justice. Nor do the failings of the Bush administration change the fact that a new facility outside of the United States is, and should be, evaluated to house and secure certain terror suspects captured abroad.
If Al Qaeda or another terror group with camps in some foreign land strikes us again, President Obama would certainly order necessary military strikes in response. Terror suspects, and almost certainly non-suspects, would be killed. We don't call that the death penalty, we call it a military strike. There is and must be a different standard no matter how this "war" is defined. President Obama recognizes that. He has not halted all "renditions," where a suspected terrorist is transferred out of one country to another, and Capitol Hill sources have been quoted saying that new interrogation techniques are being evaluated. What Obama has done is to immediately outlaw the true sins of the previous administration. No torture, no suspects being sent to prisons where they would be tortured, and no Guantánamo.
The Bush Administration has disserved us. That sad legacy, however, should not lead us to overreact. If we do, the result could legitimize their cries of safety versus danger, instead of crafting the very system they should have initiated from the start.
Dan Abrams is the CEO of Abrams Research, a lawyer, and the chief legal analyst for NBC News and MSNBC. He launched Abrams Research in November 2008 and is an outside consultant to NBC.
