Over at the Lawfare blog, Benjamin Wittes notes my call in the Washington Post this week for President Obama to take Leon Panetta’s advice and start bringing captured terrorists to Guantanamo, and asks: “Does Marc Thiessen Know What He Is Suggesting?” Wittes writes:
I wonder if he truly understands the magnitude of the suggestion he is making here. Like House Armed Services Chairman Buck McKeon a few weeks ago, Thiessen seems to think Guantanamo is simply surplus detention space. It’s not. It’s surplus detention space with habeas. Bringing people there thus involves a decision to grant them a measure of judicial review that they don’t get anywhere else. I think this is a good idea for certain categories of long-term detainees, including certainly the high-value detainees with which he is concerned here. But it would be a fateful and complicated step, not simply—as Thiessen suggests—a climb-down for the administration, but also an affirmative decision to submit to a degree of judicial scrutiny above and beyond what is strictly speaking necessary under current law. Does Thiessen really want that? And for whom?
To answer his question: Yes, Ben, I know exactly what I am suggesting. Obviously, I would prefer that the president reactivate the CIA’s black sites, where captured terrorists have no habeas rights, but that is not likely to happen. However, it does appear, based on Panetta’s testimony to the Senate Intelligence Committee last week, that the administration is actually considering bringing high-value detainees to Guantanamo. This would be a massive improvement over the current policy, which is to not capture or interrogate senior al Qaeda leaders at all.
Guantanamo is far from ideal. But it is—in Donald Rumsfeld’s famous words—the “least worst place” to take captured terrorists. Habeas is a real problem, not because a federal judge is likely to order the release of Ayman Zawahiri or other senior al Qaeda leaders, but because once these terrorists get access to lawyers, it becomes impossible to effectively question them. Getting information out of captured terrorists requires exposing intelligence to them during questioning. This can only be done if the terrorists are completely cut off from the outside world. If the terrorists are going to meet with their lawyers a few hours after undergoing questioning, you can no longer expose intelligence to them for fear that information will get out and make its way back to their comrades in the field.
But as I pointed out at yesterday’s AEI panel, there is a simple solution for this problem: President Obama can restore secret detention. In 2009, Obama ordered that all captured terrorists must be declared to the Red Cross within two weeks of being taken into U.S. custody—no exceptions. That is insanity. In the past, the CIA has questioned captured terrorists for months before al Qaeda knew we had them, allowing us to track down other terrorists and wrap up cells planning attacks before they knew what hit them. But if the U.S. government announces to the world that we have a terrorist in custody, al Qaeda will immediately start covering his tracks—closing down safe houses, phones, emails, and cells he knows about, and drying up all the intelligence leads that a detainee can provide.
President Obama can fix this problem by restoring secret detention for limited periods—say, two or three months at a time—that can be renewed by the president. This would solve the habeas problem. Terrorists could be taken to Guantanamo covertly, and held in secret until we are done questioning them for intelligence purposes. Then they can be declared to the Red Cross, and given access to lawyers so they can file their habeas petitions.
This solution is, of course, imperfect. But it is better than the Obama administration’s existing approach, which is to kill any high-value terrorists they find and vaporize all the intelligence in their heads in the process. Dead terrorists cannot tell you their plans for new attacks. Captured terrorists at Guantanamo can.