Gitmo: Ideology First, Security Second

The news of President Obama’s Executive Order to close the Guantanamo Bay detention facility within a year – with all the headaches and risks that entails – recalled to mind an episode from more than five years ago, when I served on the National Security Council staff of President George W. Bush.

Michael Gerson, then the President’s chief speechwriter, assigned me to write the first draft of the President’s speech to the UN General Assembly.  This gathering is considered more or less an obligatory venue, not just for American Presidents, but for heads of government from virtually every country in the world.  The speeches are mostly forgettable.  But President Bush’s prior effort at the UN – his September 12, 2002 brief against Saddam Hussein’s regime in Iraq – was memorable indeed.  Drafted by my colleague John Gibson, it would be a hard act to follow.  Not only that, the UN is in the best of circumstances a notoriously tough room.  As I recall, they only time the audience ever clapped for the President (other than when he finished) was when he announced that the United States would rejoin UNESCO.  And these were not the best of circumstances.  In September of 2003, no WMD had been found in Iraq nor did it seem likely that they ever would be found, the Iraq insurgency was beginning to spiral out of control, and a beloved figure at the UN – Brazil’s Sergio Vieira de Mello – had been killed by a Baghdad car bomb attack on UN headquarters there only a month before.

Mike asked me for some new ideas for the speech.  We both knew that the bulk of it would have to be devoted to several expected topics – Iraq above all – but he wanted something fresh, something that the President could propose that would shift at least a sliver of the international conversation back into America’s favor.

My best idea, or so I thought, was the following (these are not the exact words I drafted, which in any case were never used, but close enough to get across the idea):

Many of the nations here have expressed criticisms of the legal arguments my government has employed to justify holding several detainees captured in the War on Terror.  I say today, that we in America have heard those criticisms, and have even come to share them to some extent.  America is a nation of laws, and a firm believer that the rule of law must be the foundation of any successful and just nation, or any effective international system.

Decades ago, the civilized nations of the world together codified a system for treating prisoners of war captured in lawful combat.  The system works when all honor it.

But it does not fit the new reality we all face.  Those who mock, flaunt and defy the laws of war cannot and should not be allowed shelter under them.  Offering them as much erases the distinction between lawful and unlawful, civilization and barbarism, invests evil with a legitimacy it does not deserve, and invites more bloodshed.

However, because one set of laws does not, nor should not, apply to terrorists, that does not mean that terrorists should be above, beneath, or beyond the law.

Just as the community of nations came together to craft the Geneva Conventions, let us come together again to craft a legal framework that meets the challenge of the age of terror.

From experience, we know that criminal trials are ineffective against terror.  From practice we know that in this war not every unlawful combatant will be killed on the field of battle.  Many will end up in the hands of those they wish so desperately to harm.

What we do with them is a matter of intelligence, of security, and of conscience. Until now, our choice was to hold them in questionable legal status, or to let them go -- facing the near certainty that most, if not all, would try to attack us again.

That is no choice a free nation should have to face.  So let us work together to transcend it.  Let us craft a code that protects our peoples, reflects our ideals, punishes the guilty, and honors justice. 

It seemed to me like a classic win-win.  Good politics and good policy.  Good politics because it turned the tables on the President’s – and the country’s – critics, forcing them on the defensive and either bringing them to the table or calling their bluff.  Good policy for all the reasons spelled out in the language above.

Mike was enthusiastic, as was the NSC Legal Advisor at the time, John Bellinger.  Bellinger had tried something similar in the months before, and hadn’t gotten very far, but he was ready to try again.  It was his job to run it through the proper policy channels to get approval to even take such an idea to the senior-most reaches of the administration.  All that had to happen before the idea could even be presented to the President, to say nothing of actually beginning the extraordinarily hard task of crafting such a code.

In any event, I was not privy to those meetings.  But I was later told the upshot.  Other officials argued that to make such a proposal was in effect to set a trap for ourselves.  Of course other nations would take up the President’s call, they argued.  They will work hard to fill any such codes with provisions that the US could never accept and then dare us to kill our own proposal.  If we go along, they get a liberal legal regime that they want.  If they don’t, they make us look even worse in the international stage.  It’s win-win for them, not us.

So there it died.  It never made it out of those mid level meetings to be presented to anyone truly senior.

And I suppose the critics did have a point.  No doubt some nations would have acted that way, making the negotiation of any new code a very difficult endeavor.  But then (though it is clichéd to say it) so many worthy endeavors are difficult.

President Obama has given his administration one year to figure out what to do with the detainees.  It sounds like a long time, but it’s not.  The incredibly detailed reporting of Tom Joscelyn above all shows how dangerous many of these people really are.

While I think the caricature of the Bush administration as narrowly unilateral and hostile to international cooperation in principle is vastly overblown, I do think the Administration missed an opportunity on this score.  Some day – sooner is better than later – the US and the world are going to have to come up with a regime for dealing with hardened terrorists who are neither criminals nor lawful combatants.

Facing the terrible choice between holding such killers in ambiguous legal circumstances and letting them go, Bush went one way, and President Obama seems to be tilting the other way.  Wouldn't it be better not to have to face that choice?