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Gates on Closing the Gates

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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June 11, 2007

It’s the talk of the town; the one story that’s gotten major play off the Sunday shows yesterday is Secretary Powell’s (I believe cabinet secretaries retain the honorific even after leaving office) strong endorsement of Gitmo closure and the transfer of the detainees to the civilian courts.Walter Pincus—part of the old guard of the Pentagon and national security press corps—has this page three report. Also, as mentioned below, the video is climbing the charts at So, keep up the momentum: vote for Colin! Er, wait, that sounds conspicuously prescient (not sure if you noted the tidbit about Secretary Powell meeting twice with Obama).In any event, all of the coverage has drawn comparisons with the Powell clarion call yesterday and the remarks by current Secretary of Defense Gates at an approps hearing in March. I went back to the vault and pulled the exchange for you. Check it (and you gotta love the Gonzales snipe halfway through):

SEC. GATES: Mr. Chairman, I came to this position believing that Guantanamo should be closed. I know that people have expressed that as a wish. The president has expressed it as a wish. Part of the problem that we have encountered is, first of all, I think that my own view is that because of things that happened earlier at Guantanamo, there is a taint about it. And it’s one of the reasons why I had recommended or pressed the issue of trying to get the trials moved to the United States, because I felt that no matter how transparent, no matter how open the trials, if they took place at Guantanamo in the international community, they would lack credibility.The reality is there are people at Guantanamo we would like to turn back to their home countries, and their home countries won’t take them. There are also some number of people at Guantanamo that, frankly, based on their own confessions, should never be released. Now, I’m not the attorney general. I’m not a lawyer. So I don’t know if there is some –REP. OBEY: Well, the attorney general isn’t much of a lawyer either from what I’ve seen lately.SEC. GATES: I don’t know whether putting them in the military prison system provides the capacity to keep them incarcerated, but I know that there are some people down there that if we release them have made very clear that they will come back and attack this country. And so, how we deal with that over the long term, frankly, I think is a challenge that rests before both the Congress and the executive branch. And it may be that it requires some kind of a statutory approach to deal with it in terms of how do you keep these people, who are self-confessed terrorists, who will come back and attack the United States if they’re ever released, for the long term.REP. OBEY: Well, I appreciate your concern about it. And I hope that we can work to find some way to correct this problem because, as you say, it is a stain on our reputation, and we can’t afford it.Thank you, Mr. Chairman.REP. MURTHA: Yeah. I sent Mr. Moran down. We came to the same conclusion. We just didn’t have a solution at this point. I want it closed. I wish it would be closed. I agree with the chairman, but it’s not that easy. We’ve got to find a way to get this thing worked out, though.

So, most commentators have fixed on the similarity in the Powell/Gates Gitmo position. But, let’s also look at a key distinction. Gates, along with Pentagon shills, have been skeptical of Gitmo as a incarceratory institution, yet have played it like they’re stuck between a rock and a hard place: we’d like to shutter the thing, but it’s the only option for the REALLY bad guys.To wit:

“This process has to go on because there is no alternative, at least for trying the high-values,” said a legal advisor to the military commissions, who spoke about the so-called high-value detainees on condition of anonymity because the Bush administration has not decided how to proceed with terrorism trials.

Gates made a similar point in his testimony above.Now, Secretary Powell has no such qualms. We know how to handle bad people, he said. We have an entire body of law on the books to deal with national security crimes. We have courts that can hear classified evidence. We have procedures to try individuals for espionage, treason, leaking classified information. We also have security measures in place—or at least can easily put them in place—to virtually eliminate the risk posed by the supposedly certain recidivists down at Gitmo.I mean, instead of Camp X-Ray or whatever, let’s just build a supermax prison in the midwest somewhere dedicated only to high-value terror suspects. Is that so inconceivable? If we can safely incarcerate criminally insane serial killers, we can certainly do the same with a Khalid Sheikh Mohamed (who, after all, was the brains, not the brawn, behind terror operations).Take this whole discussion a step further, however. What Gates and the Pentagon are in effect saying is not that the civilian judicial system is inadequate to adjudicate the guilt or innocence of “high-value” terror suspects. No, what they’re saying is that the impartiality of the civilian court system could, hypothetically, result in high-value terror suspects being released.Secretary Powell, however, is fully cognizant of that feature, and, indeed, he lauds it. His point is: isn’t that what America is all about? Moreover, the civilian courts, especially on high-profile cases like this, are going to be neurotically circumspect in ensuring that an ostensible “high-value” detainee, on trial for terrorist crimes, isn’t going to get off on a technicality (in point of fact, that only happens at Gitmo).The Israelis are fond of saying that they fight with one hand behind their back. Democracies must. If we really value the rights of the individual as the seedbed of our collective liberty, we have no other option. Secretary Powell realizes that. And, frankly, I suspect the Pentagon does too, it’s just that they can’t say it. They gotta keep throwing out the specter of the “high-values” to appease the White House, even though they’d like to throw this stinky fish off their policy plate.