The aging population of prisoners and the expiration of the 2001 law that authorized the War on Terror are increasing concerns to those overseeing the detention camp at Guantanamo Bay, according to a Pentagon official’s congressional testimony.
The remarks during Thursday’s Senate Armed Services Committee hearing came from Brian McKeon, the Principal Deputy Under Secretary Of Defense For Policy, and run counter to assertions made by administration officials last year who contended that ongoing counter-terrorism activities, including prisoner detention, are legal under the president’s Constitutional war power under Article II, as well as the Authorization for Use of Military Force (AUMF), which was passed by Congress shortly after 9/11.
“We are relying on the 2001 AUMF,” said McKeon in response to questioning from Sen. Angus King (I-Maine) about the legal authority to hold individuals who are deemed too dangerous to transfer.
“If we did reach a point where the 2001 AUMF is either repealed by the Congress or we decided it’s no longer sustainable based on the situation in Afghanistan, then we would have an authority issue to wrestle with – no question about that,” the military official added.
Last May, during a Senate Foreign Relations Committee Hearing, a Pentagon lawyer offered a far broader view of the president’s counter-terror authorities.
“In terms of the authority to protect this country against [terrorist] groups…both the statute and the constitution provide authority for the president to use military force to protect,” said Defense Department general counsel Stephen Preston, referring to both the President’s Article II war powers and the 2001 AUMF.
“These two sources of authority are not and were never intended dot be mutually exclusive. They are largely overlapping.”
During that hearing, it was also clarified that “force” can mean both active military strikes like drone bombings, as well as the forceful detentions of individuals.
Sen. Tim Kaine (D-Va.), who attended that foreign relations hearing last May and Thursday’s armed services hearing, used his time for questioning to clarify this new position.
“I just wanted to underline, I think testimony was given earlier that the continued legal ability to detain at Guantanamo does hinge on the continued viability of that AUMF…am I correct about that?” asked Sen. Kaine.
“That’s correct,” McKeon said.
Last December, President Obama announced the “end of the combat mission in Afghanistan,” noting that “the longest war in American history is coming to a responsible conclusion.”
The President has made overtures to Congress about repealing and replacing the 2001 AUMF, though the administration has never formally offered an alternative. It has, instead, claimed the constitutional authority to wage war on militant groups that formed after 2001, like al-Qaeda in the Arabian Peninsula (AQAP) and the Islamic State, and claimed that the 2001 AUMF still applies to these groups. In December, as The Sentinel reported, Secretary of State John Kerry told the Senate Foreign Relations Committee that the 13 year-old law authorized the ongoing military campaign against the Islamic State.
“We’re not about to start a third war,” he said. “Osama Bin Laden started this on 9/11 in 2001, and he has continued it, in absentia, obviously.”
Perhaps recognizing the effect that a formal end to the war in Afghanistan and a repeal of the AUMF would have on further detentions at Guantanamo, McKeon disagreed with the president that the war in Afghanistan is winding down.
“We’re not at the end of hostilities in Afghanistan,” he told lawmakers. He added that questions about what to do with detainees once the AUMF is repealed are “a couple years” away.
As The Sentinel reported on Wednesday, President Obama’s nominee to be the Secretary of Defense, Ashton Carter, also described the war in Afghanistan as “ongoing,” instead of winding down.
Sen. John McCain (R-Ariz.), the committee’s chairman, and a former POW himself, was open to the idea of crafting a new authorization for the indefinite detention of individuals still left in Guantanamo beyond the end of the Afghanistan war.
“We need a proposal,” he said, stressing that it must include provisions to “make sure that these individuals who are judged too dangerous to return, are not allowed to and an accommodation is made for the continued incarceration of those individuals.”
But the danger posed by these individuals, even if once real, is decreasing, McKeon intoned. Other than legal issues, the detention facility at Guantanamo is also beset by the health problems of its indefinite residents.
“There are certain number of members of the population who have acute health care conditions and as they get older those will continue to get worse,” McKeon said. He relayed comments made by a commander at Guantanamo who was concerned about rising costs of flying specialists from the United States to treat detainees.
“I think we’d prefer on a short term basis to bring them to the United States for such specialist care as need,” McKeon said.
Last year, Senate Democrats tried to pass a provision in the annual defense authorization bill that would have allowed for the temporary medical transfers of Guantanamo detainees to the United States to receive proper care. It was removed before final passage of the bill.
At times, witnesses and lawmakers at the hearing honed in on how Guantanamo is used as a recruitment tool for terrorists. McKeon said the administration is constantly weighing the risks associated with releasing a detainee against the risks of keeping the facility open.
During questioning from Sen. Tom Cotton (R-Ark.), however, the hearing itself became a potential recruitment tool.
“In my opinion the only problem with Guantanamo Bay is there are too many beds and empty cells there right now. We should be sending more terrorists there for further interrogation to keep this country safe,” he said.
“As far as I’m concerned every last one of them can rot in hell,” Cotton added, with his voice rising “but as long they don’t do that then they can rot in Guantanamo Bay.”
McKeon, in response, quietly took a sip from a glass of water at the witness table.
