What Isn't Being Said About Guantanamo

By Jacob L. Shapiro 

Feb. 24, 2016 

A daily explanation of what matters and what doesn't in the world of geopolitics. 

The transformation of warfare raises difficult questions when it comes to international laws written in a bygone time. 

Before his term expires in less than a year, it appears U.S. President Barack Obama will try one last time to close the Guantanamo Bay detention camp in Cuba. Across the political spectrum, heated rhetoric makes Guantanamo appear more important than it is. Certainly, Guantanamo has become a political symbol used to justify various positions. But the significance of Guantanamo lies not in its symbolism, but rather in the more mundane truths it reveals about the weakness of the office of the U.S. presidency and the complexities of international law as applied to 21st century conflicts. 

Closing Guantanamo was one of Obama’s most famous campaign promises in 2008. On Obama’s second day in office, he signed an executive order stating that the detention facilities at Guantanamo should be closed within one year. Within a week, a military judge at Guantanamo rejected the executive order. Six months later, a Congress controlled by Obama’s own Democratic Party passed legislation intended to prevent Obama from transferring Guantanamo detainees either to the U.S. or abroad. Guantanamo remained open.

Yesterday, Obama called once more for the closure of Guantanamo in prepared remarks at the White House, and a document of just over eight pages was published on the Department of Defense’s website laying out the administration’s plan to close the detention camp. The situation today is little changed from Obama’s first attempt to close Guantanamo by executive order. The only true difference is that Obama faces a much more hostile Republican-controlled Congress – one that passed a bill in November forbidding the Department of Defense from using congressionally approved funds for the transfer of Guantanamo detainees by a 91-3 Senate margin.

The office of the president is weak by design. The U.S. government is a system of checks and balances, and the checks set on the office of the president are perhaps the strongest. The writers of the Constitution had just revolted against a king and designed the system with that in mind. Obama’s plan to ensure that the issue of Guantanamo is closed before he passes the baton to the next U.S. president isn’t an ambitious goal – it’s an unrealistic one. It would require Congress to change its mind, and it has no incentive to do so.

Obama came into office with many ambitious plans. He was going to end the war in Iraq, focus on winning the fight in Afghanistan and subsequently withdraw U.S. troops and pass universal healthcare. Congress passed healthcare – but Obama had to make a number of compromises on the deal to get it through. The U.S. pulled the last of its troops out of Iraq – only to have to re-engage in response to the rise of the Islamic State. And Obama announced last October that U.S. troops would remain in Afghanistan after his term expires. That Obama has met with obstacles to realizing all his goals does not make him unique – indeed, it makes him just like almost every other U.S. president. You can add Guantanamo to the list of issues Obama wanted to solve but, as commander in chief, lacked the power to execute.

Guantanamo was also not an easy task for Obama to take on in the first place. I wrote yesterday of the highly arbitrary nature of international law. War, however, is an area of international law that is less vague than others. Indeed, the very foundations of international law as it exists today come from the laws and customs related to war and to the treatment of diplomats. The international political system is based on the idea that war is a civilized way for states to resolve differences – as civilized as any violent conflict can be.

Article 4 of the 1949 Geneva Conventions is very clear about who qualifies as a prisoner of war and how they are to be treated. As Dr. George Friedman has noted in his previous writing on the subject, the reasoning behind the Geneva Conventions in this regard has to do with the 1870-1871 Franco-Prussian War, when irregular French fighters called “francs-tireurs” (“free shooters”) took up arms against the Prussians without any identifying uniform or insignia. Unable to distinguish between civilians and soldiers, Prussian soldiers fired upon both indiscriminately. The Geneva Conventions held the francs-tireurs – and not the Prussian soldiers – responsible for the civilian deaths.

Article 5 of the Geneva Conventions is much shorter than Article 4. It simply states that, should there be any doubt as to whether a captured combatant is a prisoner of war, that person is entitled to the rights afforded by the conventions until such time as a “competent tribunal” makes a determination one way or another. By accepting the possibility of doubt, Article 5 suggests that an enemy combatant who is captured and determined not to be a prisoner of war is not entitled to protection under the conventions.

Historically, this was always true for spies and saboteurs. In 1942, before the Geneva Conventions had been adopted, the U.S. Supreme Court upheld the notion that what it termed “unlawful combatants” are “generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.” In every major conflict of the 20th century, spies and saboteurs were tried by military tribunals on the battlefield and often executed. There was an understanding that foregoing wearing a uniform and engaging in hostilities meant one shouldn’t expect due process if captured. 

Many of the detainees that have been held at Guantanamo since the detention camp was opened in 2002 have been, according to the standards of the Geneva Conventions, ineligible for consideration as prisoners of war. They also for the most part can’t be considered criminals in the strict sense either – President George W. Bush declared a war on terror, and both presidents Bush and Obama have deployed military resources to fight that war during their terms. Considering terrorists or stateless militants to be in the same legal category as a spy or a saboteur is not an unreasonable conclusion to make.

The current framework for legal proceedings at Guantanamo is the Military Commissions Act of 2009 – which in the first subchapter preserves the distinction between “privileged belligerents” and “unprivileged enemy belligerents," the latter being ineligible for Geneva protections. It also enables U.S. Federal Courts to review the judgments made by military commissions. Even so, the basic problem is still the same. Guantanamo exists because after 9/11, the United States had to figure out how to deal with al-Qaida fighters within a framework that was developed in the 19th century and was codified right after World War II. From a legal perspective, many of the detainees at Guantanamo defy conventional legal categories, and no matter how hard Obama works to close the detention facility, it won’t create an enforceable 21st century Geneva Convention.

There is one more point to make about Obama’s move to close Guantanamo. In his remarks, Obama characterized Guantanamo as the ultimate recruiting tool for terrorists – that the detention center itself is tailor-made propaganda for those seeking to harm the United States. This may be true – but if and when Guantanamo is eventually closed, the jihadist groups that consider themselves at war with the West will not give up their fight or congratulate the U.S. for its moral progress. The U.S. will still detain unlawful combatants – it will just find a new place to put them. The resolve of groups like the Islamic State or al-Qaida is unconnected to whether or not the U.S. is operating detention camps on Guantanamo.

So Obama will throw himself like a wave on the rocks of Congress once more. He has done so in his own words because it’s an election year in which he doesn’t “have to worry about the politics.” He probably will not succeed in closing Guantanamo before his term ends – and even if Guantanamo closes, it will be because Congress has a change of heart, and not because Obama has decided to make a strong statement about it. And long after Obama has left office, the U.S. will still be dealing with the same problem that created Guantanamo in the first place: how to fairly identify and interact with an enemy in a world where war is no longer fought between two sides on a pitched battlefield, but by stateless and ununiformed guerillas and fighters. There is a great deal of noise about Guantanamo, but the silence about this underlying question should be deafening.