Putting Guantanamo in the Rear-View Mirror: The Political Economy of Detention Policy

Abstract

National security policy often emerges in the signals presidents send. The Bush administration’s establishment of a detention camp at Guantanamo signaled a unilateralist bent and an impatience with the processes undergirding American law. President Obama’s announcement that he would close Guantanamo within a year underlined a contrast with the predilections of his predecessor. However, the new administration was not prepared for the resulting backlash in Congress. Ironically, the Bush administration’s travails and the Obama administration’s early stumble had something in common: in each case, officials failed to signal that they understood the interaction of three factors: efficiency, equity, and accuracy. Efficiency and accuracy present the most telling trade-off. Bush officials valued Guantanamo as a convenient site where they could detain and interrogate suspected terrorists with minimal interference. However, they unduly discounted the risk of false positives - detainees who actually posed no danger. Obama reframed efficiency to encompass the global good will that Bush had disdained. However, despite Obama’s fine intentions, many in Congress read his one-year deadline as a signal that he had not reckoned with the risk of false negatives - released detainees who posed a real danger to the United States. President Obama has since adjusted his course, outlining a three-pronged strategy for promoting accuracy including federal criminal trials, military commissions, and detention under the laws of war. Congress has signaled greater inclination to work with the President. However, congressional restrictions on the transfer of detainees to the United States reflect lingering anxiety. This Article discusses the virtues of the President’s approach, while arguing that aspects of the approach such as allowance of hearsay evidence echo the Bush administration’s neglect of false positives. In addition, the Article analyzes solutions for the equity issues raised by detainee stateside transfers, including creating a bipartisan Commission that could recommend dispersion rules limiting any one state’s share of detainees. It concludes that courts should uphold much of the President’s program, while limiting hearsay evidence and charges before military commissions. Courts should also broaden access to habeas corpus to include detainees at other sites such as Bagram air base. Moreover, a congressionally established Commission implementing dispersion rules could address equity issues while defusing political influences such as the “Not in My Backyard” (NIMBY) syndrome.