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The Prisoners’ Dilemma The Prisoners’ Dilemma

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Cover Story

The Prisoners’ Dilemma

Bowing to political reality, the Obama administration has abandoned its plans to close the detention facility at Guantanamo Bay. Surprisingly, many legal experts think that’s a very good decision.


Never mind: Guantanamo is open for business two years after President Obama said it would be closed within a year.(John Moore/Getty Images)

GUANTANAMO BAY NAVAL BASE, Cuba—On a rainy morning in late February, Navy personnel escorted Noor Uthman Muhammed, accused of terrorism, into a heavily fortified military courtroom here. Muhammed’s civilian defense attorney, a prominent corporate lawyer named Howard Cabot, walked over to his client to say hello. A few minutes later, Navy Capt. Moira Modzelewski, the judge hearing Muhammed’s case, strode into the courtroom. Everyone stood, including Muhammed, a slight Sudanese man who has been held at Guantanamo Bay since he was captured in Pakistan nine years ago. “Good morning, everyone,” Modzelewski said from the dais at the front of the windowless one-story building. “This military commission is called to order.”

Those are seven words that the Obama administration once hoped would never be spoken again. Then-Sen. Barack Obama voted against the Military Commissions Act of 2006, which was designed to give formal sanction to such proceedings. During the 2008 election campaign, candidate Obama regularly denounced the existence of this detention facility and vowed to close it if elected president. Shortly after taking office, President Obama issued executive orders requiring an immediate case review for each of the detainees still held at Guantanamo Bay and formally declaring that the camp would “be closed as soon as practicable, and no later than one year from the date of this order.”


More than two years later, the Guantanamo Bay prison remains open for business, and administration officials have publicly conceded that the government will continue to use the facility well into the future. Speaking to the Senate Intelligence Committee in February, CIA Director Leon Panetta said that fugitive Qaida leaders Osama bin Laden and Ayman al-Zawahiri would be taken “to Guantanamo” if they were captured alive. Defense Secretary Robert Gates separately told lawmakers, “The prospects for closing Guantanamo, as best I can tell, are very, very low.”

In fact, the pace of activity at Guantanamo will sharply accelerate in the months ahead.

Gates issued a formal directive in early 2009 barring new military commission proceedings for any detainees except Muhammed and a handful of other “legacy cases.” Senior Defense officials told National Journal, however, that the secretary will lift the ban in coming days, paving the way for military prosecutors to proceed with cases against dozens of Guantanamo detainees. The government could bring initial charges against a handful of high-profile inmates within weeks, according to Navy Capt. David Iglesias, one of the lead prosecutors in the Pentagon’s Office of Military Commissions.


“We’re moving ahead and would be prepared to open new commission proceedings quickly if the stand-down order is lifted,” Iglesias said in an interview. “There wouldn’t be much lag time.”



Perhaps the only thing more surprising than the Obama administration’s growing acceptance of Guantanamo Bay is the emerging consensus in legal circles that keeping the facility open—and holding new trials here—may well be the best available option for dealing with detainees from the ongoing war on terrorism.

A growing number of legal experts, including many who once advocated shuttering the facility, argue that procedural changes have made the military-tribunal process much fairer; it is now harder for prosecutors to introduce hearsay or evidence gathered from the brutal interrogation of other detainees. Analysts and advocates also point to a pivotal Supreme Court ruling in 2008 that gave Guantanamo detainees the right to challenge their continued incarceration before civilian judges.



Politically speaking, legal experts say, the administration has almost no chance of persuading lawmakers to provide the necessary funding for closing Guantanamo. Legislation authorizing that spending failed to make it through Congress when the Democrats controlled both chambers, and the new Republican majority in the House is almost universally opposed to bringing Guantanamo’s 172 detainees to the U.S. mainland. Earlier this month, House Republicans also pushed through a bill that would specifically eliminate the salary of Daniel Fried, the career diplomat who is traveling the world trying to find countries willing to accept freed Guantanamo detainees.

We won’t be getting out of the detention business anytime soon.” —Benjamin Wittes, Brookings Institution

“Guantanamo Bay circa 2011 is not remotely the same as Guantanamo Bay circa 2002-2004,” said Robert Chesney, a law professor at the University of Texas who has written extensively about the detention facility. “In an ideal world, we’d close Guantanamo down because of all of the baggage associated with our prior mistakes there. But this isn’t an ideal world, and it’s not at all clear that there are any better solutions out there which have a realistic chance of being put into effect.”

This article appears in the March 5, 2011 edition of National Journal Magazine.

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