The New York Times recently reported that the Obama administration plans to establish a periodic review process for certain detainees currently being held without trial at Guantanamo. As a candidate and early in his administration, President Obama maintained that Congress should pass legislation that would give the President the authority to detain terrorism detainees indefinitely without trial. In May 2009, however, he changed his position, arguing that the 2001 Authorization to Use Military Force (AUMF) provides the President the authority he needs to detain these terrorism suspects without trial.
The President's change in position likely results from Congressional opposition to trying terrorism suspects in federal court in the United States, as well as opposition to closing Guantanamo and moving all of the detainees to the United States. In the new Congress, there are likely to be several bills introduced that would prevent the President from moving any of the detainees to the United States or trying them in federal court.
In light of this continued opposition, President Obama is seeking to bypass Congress and establish some legal structure for periodic review of detainees by means of an executive order. Unlike his predecessor, President Obama is not claiming that he has the exclusive authority to decide these matters. Rather, he is opting for this approach because Congress is unwilling to give him the legislative authorization that he initially hoped for. Nonetheless, at the end of the day his approach is likely to lead us to the same place as his predecessor's: to executive policymaking independent of Congress, supported by claims of exclusive constitutional authority to decide these vital questions of national security and individual freedoms.
This result can and should be avoided. Members of the new Congress should embrace the framers' intention and jointly participate in national security decisions with the President. Now is the time for Congress to accept this shared responsibility and begin to act like an equal partner in this process. Its failure to do so will, when all is said and done, continue a dangerous precedent and ultimately weaken its position.
Members of Congress who are critical of the President's proposals need to accept at least two facts. First, with respect to where detainees should be tried, members should note that many terrorism suspects have been successfully prosecuted in federal courts. The expertise of the judges trying those cases, and the government attorneys prosecuting them, is certainly sufficient to address the cases against the remaining detainees at Guantanamo.
Second, members of Congress should note how much the very existence of the Guantanamo facility has undermined United States efforts in the war on terror. As General David Petraeus, who commanded the multi-national force in Iraq, has remarked that the closure of Guantanamo will help the American military's counterinsurgency efforts in the Middle East by eliminating an important recruiting symbol for jihadists. Continuing to hold these detainees at Guantanamo indefinitely and without a clear legal structure and periodic review of their detention simply will not advance our national security interests.
It is not difficult to understand why members of Congress who oppose the President on political grounds would also oppose him on policy grounds. Demagoguery about terrorists incarcerated in local prisons is just the kind of rhetoric that inflames passions and solidifies election-year support. But the election is over. Now it is time for Congress to enact a legal framework to regulate the indefinite incarceration of terrorism suspects and to guide the President's prosecutorial discretion. In the interests of both justice and security, Congress should determine where these suspects should be tried and how they should be held accountable for their actions, if found guilty.
If Congress continues to play politics by opposing any policy regarding terrorism suspects that the Obama administration proposes, then the President is likely to follow in the steps of his predecessor and seek to accomplish his goals without involving Congress. If Congress wants to reverse the recent trend of being a bystander to critical, national security policymaking, it must work with the President to create a structure to guide his decision-making process.
Professor Hansen teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics. Professor Friedman teaches Constitutional Law, Information Privacy Law, National Security Law, and State Constitutional Law.
Suggested citation: Victor Hansen, Lawrence Friedman, Abstained Review Process of Guantanamo, JURIST - Forum,
Feb. 4, 2011, http://jurist.org/forum/2011/02/abstained-review-process-of-guantanamo.php.