President’s Guantánamo dilemma

Speaking recently, President Obama reaffirmed his intent to close the U.S. detention facility at Guantánamo Bay, Cuba. I served as White House counsel during the initial recommendation to former President George W. Bush to establish the Guantánamo facility. It represented the best among a number of bad options, chosen in the months after the 9/11 attacks because of the necessity to detain enemy combatants in a secure, remote facility. President Bush had no interest in using Guantánamo during his presidency a day longer than necessary. Then-Secretary of Defense Don Rumsfeld also had no desire for the U.S. military to be the world’s jailers. However, the Bush administration established and continued to use Guantánamo because it was necessary.

President Obama asserts that Guantánamo is not necessary to keep America safe; however, he does not offer a better solution as to what to do with the combatants currently detained. The political and national security implications of simply releasing the detainees are obvious. No president wants to confront parents grieving over the death of a son or daughter at the hands of a detainee released from Guantánamo. Additionally, the administration has undoubtedly exhausted all efforts to return these combatants to their home countries and apparently has been unsuccessful in incentivizing other countries to take them off our hands.

This leaves, of course, the controversial step of detaining the combatants in the United States. While I believe our government has the capability to provide for their safety, as well as the safety of the surrounding civilian population, housing combatants here might well vest them with additional constitutional claims to challenge their detention and the conditions of their confinement. Furthermore, moving combatants to a facility in the U.S. would likely create a new symbol of so-called “American oppression.” The question is not whether we should detain combatants in the United States — the question is why would we want to do so.

The president also contends that Guantánamo is a recruitment tool for terrorists. Some may find this comment ironic from a president who has overseen the rapid expansion of a controversial drone policy that has resulted in a number of civilian casualties overseas. While I agree with the use of drones, arguably this policy has done as much to recruit new terrorists as our detention policy. The reality is that the radical ideology that fuels the hatred toward the United States existed well before Guantánamo. It was hatred toward U.S. policy and values that resulted in the 1996 bombings at Khobar Towers, killing 19 U.S. servicemen; the 1993 World Trade Center bombing, which killed six civilians; the 2000 bombing of USS Cole that killed 17 U.S. sailors; and the Sept. 11, 2001, hijackings that led to the deaths of close to 3,000 people.

The president also says that Guantánamo lessens cooperation with our allies on counterterrorism efforts. This is a remarkable assertion, based on my experience as attorney general. The Department of Justice benefited from tremendous cooperation with our allies in terms of communication, consultation and coordination on counterterrorism matters. The United States and our allies have worked well together sharing information to ensure the safety of our citizens against terrorism.

Finally, the president asserts that Guantánamo hurts our international standing. Today the facilities at Guantánamo, and the amenities provided there to combatants, are better than those found in some state and local facilities in America. Military commission procedures now largely track those in a U.S. criminal trial. Consequently, those overseas who continue to have negative views about Guantánamo might simply be misinformed about the current conditions, treatment and applicable procedures and protections. Others in the international community might be uncomfortable with our Guantánamo policy solely because they do not agree that a government should detain someone indefinitely without charges. Respectfully, such criticism fails to acknowledge that under the laws of war, a government may detain enemy combatants indefinitely, without charges, for the duration of hostilities. This is a long-standing tenet of international law, one consistent with our Constitution and our own traditions.

I agree that Guantánamo needs to be closed — but without a viable alternative, necessity dictates that we continue our current detention policy. That is the view of a majority of the American people and the will of Congress. Detaining combatants indefinitely is not ideal, but it is consistent with the rule of law and it remains today the best way to ensure our national security.

Gonzales is the former United States attorney general and served as counsel to former President George W. Bush. He is currently the Doyle Rogers Distinguished Chair of Law at Belmont University and counsel at the Nashville, Tenn., law firm Waller.