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By Root 2139 0

that President Barack Obama announced on his second day in office that he would close the facility within a year. His administration stepped up efforts to release detainees despite the lesson we had learned about released terrorists returning to terrorism, and the president repeated a number of criticisms that do not bear up under examination. He claimed, for example, that Guantanamo “was probably the number one recruitment tool that is used by” al Qaeda. If that were true, one would expect to see al Qaeda mention Guantanamo frequently, but a review of thirty-four messages and interviews by top al Qaeda leaders issued in 2009 and 2010 shows the word Guantanamo appearing in only three. The president has also suggested that Guantanamo should be closed because it is hurting America’s image around the world. But it’s not Guantanamo that does the harm, it is the critics of the facility who peddle falsehoods about it. Even if, for the sake of debate, one were to accept the image argument, I don’t have much sympathy for the view that we should find an alternative to Guantanamo—a solution that could potentially make Americans less safe—simply because we are worried about how we are perceived abroad.

IT HAS BEEN THE case in every major war in which the United States has been engaged that we hold enemy combatants for the duration of the conflict. This war is no different, except that the duration may be longer than any war in which we have previously been involved. As the fighting got under way in Afghanistan, we knew that there would be certain cases where we needed to try detainees. Administration lawyers relied on clear precedent to develop a system of military commissions.

In 1942, a group of eight Nazi saboteurs landed by submarine on beaches in Florida and New York. They were captured, put on trial by a military commission at the direction of President Franklin D. Roosevelt, and convicted. Six of the eight were executed. The Supreme Court unanimously upheld the constitutionality of the order Roosevelt issued establishing the military commissions.

On November 13, 2001, President Bush signed an executive order, based on FDR’s order, establishing military commissions to try certain captured detainees. The detainees were foreign enemy combatants engaged in war against the United States. Military commissions were the appropriate place to try them. Our normal Article III court system was not suited for the trial of enemy combatants for a number of reasons. These courts couldn’t provide the safeguards in terms of security or protection of classified information that a military commission could. In addition, enemy combatants are not entitled to the rights granted through our civilian court system to criminal defendants. We knew that military commissions were the right place for these trials. We also knew that the model that FDR established had been upheld unanimously by the Supreme Court, and that was the model we chose to follow.

Although the order establishing the commissions had been drafted in coordination with the Office of Legal Counsel at the Department of Justice, three days before the president signed it, Attorney General Ashcroft had come to the White House to express concern that it envisioned no role for the attorney general. But as the long history of military commissions in America reflects, military commissions are an exercise of military authority over enemy combatants and not part of the law enforcement system. Indeed, the Office of Legal Counsel had emphasized that the military commissions should be authorized by the president as commander in chief in a directive to the secretary of defense for military implementation, with minimal involvement of the Department of Justice, which has no military responsibilities.

As it turned out, we also ran into bureaucratic obstacles at the Department of Defense, and the military commissions were very slow to get started. Following a number of court cases and additional legislative action, a military commission system was established that is up and running today. I believe it