Frank Scaturro: Terror Policy About Face Highlights Difference Between Critics and Leaders

Last month, the Obama administration reversed its two-year-old ban on military trials for detainees at Guantanamo Bay, a policy that was part of a plan to shut down the detention facility altogether.  (One of President Obama’s first acts as president was ordering the camp closed within a year.)  Earlier this month, Attorney General Eric Holder announced that 9/11 mastermind Khalid Sheikh Mohammed and four other 9/11 terror suspects would be tried at Guantanamo—an about-face from the Attorney General’s November 2009 announcement that they would be transferred from Guantanamo to face civilian trial in New York City.

This marks quite a turnaround for the President, who repeatedly had declared on the campaign trail while running, “We’re going to close Guantanamo,” as unequivocal a promise as he made.  He had called Guantanamo “a sad chapter in American history,” coupled it with Abu Ghraib as “compromis[ing] our most precious values,” and referred to its system of military commissions as “a legal framework that does not work.”  Politics being politics, the administration avoided any admission that it was retracting the scathing criticisms of the campaign trail—but there is no doubt that the administration’s actions tacitly rejected their earlier positions.

Often overlooked in this story is that this is not the first time that Guantanamo was criticized on the campaign trail, only to have the critic change his tune after winning the White House.  The first President Bush used Guantanamo to hold a number of Haitian refugees who had tested positive for HIV.  As a candidate, Bill Clinton attacked this policy, but after becoming president, he adopted it—at least until a federal court in Brooklyn ruled that the refugees could not be excluded from the United States.  Then Clinton administration lawyers successfully employed a strategy that led to all lower court rulings applying American law to Guantanamo to be stricken from the record.  When two more refugee crises hit soon afterwards—one from Haiti and the other from Cuba—the administration again used Guantanamo to detain refugees it did not want to admit to the U.S.  The Clinton Justice Department argued successfully in court to keep Guantanamo beyond their purview.  That meant that refugees detained there enjoyed no cognizable rights—be they the substantive right against repatriation or the right to counsel.

Criticism of detention at Guantanamo was muted at the time, despite the fact that the refugees were seeking entry and were not suspected of intending harm to America.  In the immediate aftermath of 9/11, when suspected terrorists captured abroad were detained at Guantanamo under the second Bush administration, the initial controversy found a number of Democrats during that period of relative bipartisanship defending the policy.  Eric Holder, who had been deputy attorney general under Clinton, defended the Bush policy in a 2002 interview, asserting the need to interrogate detainees and even adding that they were “not . . . people entitled to the protection of the Geneva Convention.  They are not prisoners of war.”  By 2008, however, when he was campaigning for Obama, Holder changed his assessment, calling Guantanamo “an international embarrassment” and labeling counterterrorist policy at the time “excessive and unlawful.”  That President Bush himself had wished to close Guantanamo but simply could not find a way to do so did nothing to temper the rhetoric of candidate Obama and his surrogates.

President Obama’s course before and after attaining the White House follows the pattern of President Clinton, not to mention that of other politicians who do not match their campaign rhetoric to their later decisions.  The greatest lapse on detainee issues may well have been the decision to try KSM and the other 9/11 detainees in civilian court.  Apart from the massive security concerns such a trial would have created, there were risks that state secrets might be disclosed during the proceedings or that the rules would be ill suited to consider the type of evidence obtained during essentially military missions abroad.  Moreover, the administration’s suggestion that the detainees might remain in detention indefinitely even if they were acquitted undermined any confidence the administration was trying to instill about the American justice system.

Regrettably, our own congresswoman, Carolyn McCarthy, did not question the precedent being set.  When the KSM trial plans were announced, she joined 18 Democratic colleagues in New York to ask the administration to request funds to cover security.  After the plan proved unpopular, many of those colleagues did an about-face of their own: they supported a recent bipartisan measure that barred the use of funds to transfer Guantanamo detainees to the United States.  McCarthy did not cast a vote on the bill.  Her website touts her support of “the closing of the prison at Guantanamo Bay” in a discussion of
accomplishments during the 111^th Congress that just ended, even though it did not happen and has been taken off the table for the foreseeable future.

Whatever may be the next chapter in the odyssey that has been our country’s detainee policy, the last 20 years should leave us better able to distinguish between politicians who criticize in haste and leaders who understand the difficult policy decisions they are entrusted to implement.

Frank Scaturro is a former Counsel for the Constitution on the Senate Judiciary Committee and Republican candidate for the United States House of Representatives in New York’s 4^thCongressional District.