Brookings Institution, March 10, 2011
Is there a deal to be done between President Obama and congressional Republicans on Guantánamo?
On the surface, the prospects don’t look good. Congress has slapped a series of impediments on detainee transfers from the base. In issuing his Executive Order to create a review process for Guantánamo detainees this week, Obama attempted to circumvent the legislature on a matter on which it has a keen policy interest. And House Republicans have now responded by introducing legislation that would impose serious new constraints on Obama’s maneuverability with respect to detainee policy more generally. On the face of things, the prospects for consensus look pretty bleak. We seem, rather, to be heading for confrontation.
Yet the picture may be less bleak than it seems. There are two reasons for very cautious optimism. The first is that both the administration and congressional Republicans are committed to making policy in this area, and that dual commitment will force them to negotiate. Neither side can afford to ignore the other. Both can frustrate the other’s objectives, and that may force a measure of accommodation.
The second reason for optimism is that for the first time, nearly everyone is talking about a common policy objective: A legal framework for detention policy. To be sure, the administration and congressional Republicans are talking about very different frameworks. Broadly speaking, the administration wants flexibility to detain members of enemy force but also wants flexibility to try them in federal court and flexibility to transfer them overseas when, in its judgment, detention is no longer necessary. Conversely, congressional conservatives are pushing a framework in which it is much harder to get rid of people, harder to bring them to trial in federal court, and in which military detention and trial are thus the only real options. But at the end of the day, both sides are talking about forms of institutionalization of detention authorities. We are no longer debating whether to engage in non-criminal detention. We are negotiating over the price.
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