(Washington, D.C., Right Commentary): As Yogi Berra said, “It’s de’ja vu all over again.” That was my reaction to this piece being reported by the Associated Press and other news outlets about thoughts on closing US detention operations at Guantanamo Bay, Cuba. Mr. President-Elect, I have a unique perspective on this issue - as someone who was an advisor and the principle pen in drafting policy after policy on Guantanamo for my seniors within the Pentagon and elswhere. I’ve visited Guantanamo more times than I can count. I’ve seen and heard the arguments of both advocate and adversary of Guantanamo and endured blistering remarks from friend and foe as to the illegitimacy of our detention policies. I wrote strategic policy brief after brief for senior Pentagon officials and the Principals and Deputies Committee meetings, all with options, risk profiles, strategies, etc., to close Guantanamo. I remember writing a brief on the option your advisors propose now - it was called “the hybrid”. I say to you honestly, the “hybrid” won’t work now. Moreover, your idea of “send them back where they came from” is also problematic at best. I think you’ll find that despite all the criticism the Bush administration took - there are few options left in light of Supreme Court cases and the facts of who is in detention.

Let me say at the outset that while it seems simple, the idea of some sort of super-national security court won’t work. For one, I don’t think it will survive Supreme Court challenges. Remember they knocked down this Administration’s attempts to build a tribunal - several times. I doubt you’ll fare much better given the same Supreme Court will essentially be in place. Moreover, you’ll have one heck of a wicked public affairs problem. If you will recall, the majority of the criticism of the enemy combatant tribunals, and the military commissions process, was that it was illegitimate. Thus, I was a bit shocked that your interm Administration advisors, supported by the same critics who chastized the Bush Administration as showing no regard for the rule of law, would even propose to build a national security court. Why do you think your national security court will fare any better to the legal challenges that the CSRT, or the ARB, or the Military Commissions structures did. These were constructed by people who were as smart as your team - and probably as ideologically oriented (albeit on the right instead of the left.) Why do you think, Mr. Obama, your “kangaroo court” will satisfy international public opinion or domestic criticism any better than the multiple failed attempts of the president Adminstration?

After the littany of the Supreme Court cases - you have two choices… federal criminal prosecutions (which would be quite ugly)… or military courts martial (which undoubtedly will be viewed by many as suspect and illegitimate.) Not a pretty picture is it?

I suppose that you have decided that you want to build this court because your advisors have found out that not every guy at GTMO is just some dirt farmer we picked up in the middle of nowhere. It’s okay - I understand that realization. You don’t want to let out someone dangerous and have lives lost as the result. You want some sort of super-court that is going to be able to sift through the information at the classified levels and reach a magical conclusion about who stays and who goes. 

Or alternatively I suppose you’re going ot use this court in order to assess criminal liability - thereby eschew the who question of “try or release” by trying them all. Okay - make the court too easy, they all walk. Make the court too hard, and bear the wrath of the international community and your NGO crowd. The reality is - anything other than federal criminal prosecution or courts martial has resulted in the Goldilocks problem - this judicial system is too weak… but this one is too strong. Either way - you can’t untie this gordian knot by trying to assess criminal liability in any way other than federal prosecutions in established courts - it just won’t work. And it will also boil down to - who are you willing to put on trial - and what about the risks of acquittals. For any legal system that works fairly is going to have acquittals. 

Guess what - GTMO has never been about anything else than mitigating risk. It’s all been about risk. Who stays, and who goes, has largely been a question of risk.

If you let guys out - there is always a risk that they will return to the fight. Inevitably, one of those guys is going to do something drastic - kill thousands of people, blow up the Empire State building, fly a plane into the Statue of Liberty, you name it. Think of whatever you feel is the most damaging situation imaginable and accept the fact that someone you let out is capable of doing it.

Welcome to the world of GTMO.

Now, none of these guys may do anything. Actually, the odds are in your favor that the guys released won’t return to the fight. But I suspect your team has learned, however, that some of these guys have had training in explosives, training in kidnappings, training in hijackings, training in hand to hand combat, small arms, and other nifty little hobbies. I suspect your team has learned - despite their cover stories - not everyone really is a cook, or a clerk, or some hapless sap who was wrapped up and has been unjustly held.

And you don’t want to look stupid, and be held responsible for a lapse in judgment, should one of these hapless souls actually do something dangerous. I understand that motivation - we in the Bush Administration thought about that too - daily. Not because we were fecklessly pursuing our political livelihood - but because we understood that there were no good choices.

And although you gave speeches to undulating crowds cheering your name in Berlin, and London, and Rome - those cheers will be fleeting when you have to start telling countries around the world, “Hey buddy - want to house a couple of terrorists - they can’t go home to their country.” I’ve been in those discussions - they’re not pretty.

The first question they’ll ask you is “How many are you resettling President Obama?” A good question - would you like to bring the Uighers to Arlington Mr. Obama? How about the Yemeni’s? Or the Saudis? Which terrorists are you contemplating bringing to US soil so they can live out their days basking in the glory of our nation?

So okay - you won’t let them come as free people. You’ll build some special prison for them - Spandau in America… or as it was called in the Pentagon when I was fleshing this out, “GTMO IN CONUS”. What Congressional district are you planning to screw over by dropping this little gem of national security threat on top of? Think Senators and Congressmen will be falling over themselves? You better go back and look at the votes Mr. President Elect. They were none too eager to build Spandau in their district. You better also chose someone for Secretary of DHS with a good heart - because this problem might kill him/her. GTMO has some distinct security advantages that CONUS detention eliminates.

Is your Justice Department prepared to litigate every aspect of every issue pertaining to their detention? Because guess what - their lawyers are most definitely ready. They may have contributed to your campaign fund and got drunk when you got elected - but as sure as the sun rises, they will defend  zealously their client’s cause. I say that not with contempt - but with a somber realization that they have effectively litigated every issue, and essentially won it, against the US Govenrment. With all of its resources, the habeas lawyers have indeed fought sucessfully a match of David v. Goliath.

You’ll try to send them home to their home government. Secretary Kerry, undoubtedly, will use his magnetic personality to get countries to magically accept them. Oh wait, some of them can’t go home again - they have well founded fears of reprisals, or, they could actually do harm in their own country. Won’t exactly bolster relations and “hope and change” if you let guys go and they wind up killing their own citizens.

My advice, Mr. President elect, is that your options are limited. In light of the Supreme Court cases, and the current state of play of the litigation, it’s obvious ot me you need to let the habeas cases play out. I believe a good number of detainees will win their freedom through habeas petitions. The reality is, the government will not be able to demonstrate many of men in custody are lawfully held. This is in part because as combatants their status was determined by a threshold considerably lower than that of a criminal habeas standard. It is also because intelligence information will be interpreted differently by a federal judge, who will look at both exculpatory and incupatory information, than it was by the combatant commander in Afghanistan in the heat of conflict.

All those issues aside - you’re not really in the business of determining who stays and who goes. The Supreme Court made that ruling for you, and now the Federal courts will examine viz. habeas petitions who stays and who goes.

The ones who win their freedom via habeas, you’ll have to get your State and DoD representatives mobilized to try and repatriate them. In the remaining cases, this will not be easy. Despite what you may have believed, since about 2004 the Pentagon and State Department have been working feverishly to move out of GTMO as many detainees as could be safely and logically transferred or released. The Bush Administration did not want to hold anyone longer than necessary. The winnowing process has left only the difficult cases. Secretary-elect Kerry will have to polish up that winning smile and probably talk to the SecDef about resettlement options. It’s going to be a tough sell.

And in the meantime, what do you intend to let them do while waiting their first class ticket back to jihad? Can they roam the grounds at GTMO? Play golf? Sun on the beach? I suspect you won’t be too keen on that - especially after your commanders explain to you the difficulty in conducting long-term incarceration in that type of circumstance. I will say you’ll be even less liking the idea of bringing them to the US so that they can be held in civil detention. Guantanamo is paradise compared to some the facilities operated by DHS.

So let’s recap - your super spy court is a farce just like everything else that was tried under the Bush Administration. No one will like it - your only choices are federal criminal process or perhaps military courts martial. Neither of those processes are particularly good since you risk putting free some really dangerous guys that even your people now accept are a risk to the public. Your ability to send them home is weakened by the fact that even the new era of “we love Barack” a good number of countries still can’t take them back for lack of capacity. Oh and finally - civil detention isn’t really a good long term option.

Your only hope is that the judiciary sorts it out, you eventually get something built to house KSM and his cronies, perhaps a few of them get put on trial, and that’s the final chapter once everyone gets released, transferred, or otherwise settled. Well guess what Mr. President elect - what do you think the Administration was trying to do for the past two years?

I’m reminded of another quote, from Die Hard, “Welcome to the party pal.”

Note: My post tonight represents my own views and do not represent the views of the United States Government or official statements of US Government policy. I was the Director for Policy Planning and International Issues in the Office of Detainee Affairs and this post tonight reflects my own thoughts and musings about prospective changes in US policy regarding detention.

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