Coauthored with Daniel Byman, The Atlantic, January 3, 2013 Over the past two years, the Obama administration has begun to formalize a so-called “disposition matrix” for suspected terrorists abroad: a continuously evolving database that spells out the intelligence on targets and various strategies, including contingencies, for handling them. Although the government has not spelled out […]
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How the Next 10 Years of Guantanamo Should Look
The Washington Post, January 11, 2012 In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.
Assessing the Risk of Guantánamo Detainees
Brookings Institution, April 25, 2011 The press has discovered that it is shocked that America is releasing dangerous people from Guantánamo Bay. The New York Times reports, based on a new cache of Wikileaks documents, that Guantánamo detainees classified as low risk had turned out to be major terrorists, and that detainees classified as “high […]
Can President Obama and Congressional Republicans Reach a Deal on Guantánamo?
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 […]
Time for Obama to Embrace Guantanamo
Brookings Institution, January 21, 2011 It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his […]
No Place to Write Detention Policy
Co-authored with Jack Goldsmith, The Washington Post, December 22, 2009 Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited […]
A Guantánamo Bay Habeas Corpus Case on Constitution Day
Brookings Institution, September 17, 2010 Today, to celebrate Constitution Day, I wandered down to the D.C. Circuit Court of Appeals to listen to oral arguments in a Guantánamo Bay habeas corpus case. Okay, I admit, I didn’t exactly go to celebrate Constitution Day. I went because the court was hearing a case in which I […]
Presumed Innocent? Representing Guantánamo Detainees
The New Republic, March 24, 2010 The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal […]
Khalid Sheikh Mohammed’s Dispensable Trial
Co-authored with Jack Goldsmith, The Washington Post, March 19, 2010 The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them […]
The Courts’ Shifting Rules on Guantánamo Detainees
Co-authored with Robert M. Chesney, The Washington Post, February 5, 2010 One judge rules that a detainee’s statements to his military review tribunal are tainted by past coercion — and orders him released. Within days, another judge rules that a detainee’s statements to the same sort of tribunal are not tainted, despite similar abuse — and affirms […]
The Scouting Report Web Chat: President Obama’s Progress on Closing Guantánamo
Brookings Institution, December 2, 2009 The decision to try accused 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in New York has brought renewed attention to the thorny problem of how to deal with the detainees at Guantánamo Bay. The announcement followed the Obama administration’s admission that it will not meet its self-imposed January 22, […]
President Obama’s Decision on Closing Guantánamo
The Washington Post, September 29, 2009 President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, […]
United States Detention Policy: Will Obama Follow Bush or FDR?
Co-authored with Jack Goldsmith, The Washington Post, June 29, 2009 Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own […]
Nuts and Deadbolts: A Blueprint for the Closure of Guantanamo Bay
Co-authored with Jack Goldsmith, Slate, December 8, 2008 President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing […]
Wrenching Choices on Guantanamo
The Washington Post, November 21, 2008 Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic […]
How Do We Bring Osama Bin Laden to Justice? America is Clueless
NY Daily News, July 5, 2008 News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody. What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism – and total confusion. This is the shameful truth: Six […]
Congress’s Guantanamo Burden
The Washington Post, June 13, 2008 The key words in Justice Anthony M. Kennedy’s Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion’s penultimate page and are unlikely to attract much […]
Detention Retention: Are Guantanamo Detainees All Innocent?
The New Republic, December 7, 2007 Seth Waxman, arguing on behalf of 37 detainees at Guantanamo Bay, Cuba, told the Supreme Court Wednesday that each of these men “maintains, as this Court explained [in an earlier case] that he is quote ‘innocent of all wrongdoing.’” Waxman, a former solicitor general, is the kind of oral […]
José Padilla: Would-Be Terrorist or White House Victim?
The New Republic, March 6, 2007 “We will probably never know if [José] Padilla was a would-be terrorist,” editorialized The New York Times last week. His “trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping […]
The Courts Can’t Fix Guantanamo
The New Republic, February 22, 2007 Amnesty International calls it “shocking” and insists it “must be challenged.” Human Rights First complains that it “runs counter to one of the most important checks on unbridled executive power enshrined in the U.S. Constitution: the right to challenge imprisonment in a full and fair proceeding.” So, at the […]
Benjamin Wittes 