Memo to Obama: Closing Guantanamo Can't Wait

On Sunday, in his first television interview since winning the Presidential election, Barack Obama repeated his campaign pledge to close the prison at Guantánamo Bay and to ban the use of torture by U.S. forces. Speaking on "60 Minutes," he explained, "I have said repeatedly that I intend to close Guantánamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world."

Ever since Obama began meeting with his transition team, leaks, gossip and rumors concerning the new administration's plans to close Guantánamo, and the hurdles they will have to surmount, have been filling the airwaves and the front pages of newspapers. In an attempt to separate fact from fiction and to provide useful information to the president-elect, I'd like to offer my advice, based on the three years I have spent studying Guantánamo in unprecedented detail, as the author of The Guantánamo Files, the first book to tell the stories of all the prisoners, and as a commentator and analyst responsible for numerous articles on Guantánamo in the last 18 months.

As the President-elect and his transition team are no doubt aware, there are three categories of prisoners at Guantánamo: around 50 prisoners cleared for release or approved for transfer after multiple military reviews; up to 80 prisoners regarded as eligible for trial by Military Commission (the system of "terror trials" conceived in the Office of the Vice President in November 2001); and another 125 prisoners who have long been regarded as "too dangerous to release but not guilty enough to prosecute."

However, before looking in detail at what should be done with each of these groups of prisoners, it's important to understand how the administration came to hold prisoners without charge or trial for nearly seven years, and how it came to put some of them forward for trial in a novel and untested system for "terror suspects," and to examine the dangerously flawed manner in which the prisoners were seized, held, interrogated and appraised as a threat to the United States.

9/11: an excuse for unfettered executive power

In the wake of the 9/11 attacks, the nation's response was mainly driven forward by Vice President Dick Cheney, former defense secretary Donald Rumsfeld, and their close advisors (including, in particular, Cheney's legal counsel, David Addington). According to the "new paradigm" dreamt up by these men, prisoners seized in the "War on Terror" were regarded neither as criminals nor as Enemy Prisoners of War protected by the Geneva Conventions, but as "illegal enemy combatants," who could be held indefinitely without charge or trial. The primary justification for this was a military order drafted by Cheney and Addington in November 2001, which also created the Military Commissions. Approved with virtually no oversight whatsoever, the military order was followed by a number of secret legal opinions, which attempted to redefine torture, and approved the use of "enhanced interrogation techniques" (the administration's chosen euphemism for torture) by both the CIA and the military in general.

This was repugnant enough, but what was even more disturbing was the theory that underpinned these innovations. The military order and the secret memos -- and the "signing statements" that the President attached to a record number of laws passed by Congress, as recommended by Addington -- served as a baleful example of the administration's quest for unfettered executive power, based on "unitary executive theory."

Embraced by Cheney and Rumsfeld during their formative years in Richard Nixon's White House, and also by Addington, who teamed up with Cheney to protect Ronald Reagan during the Iran-Contra scandal, the theory contends that, when he wishes, the President is entitled to act unilaterally, without interference from Congress or the judiciary. It is, of course, in direct contravention of the separation of powers on which the United States was founded, and critics have long insisted that it is nothing less than an attempt by the executive to seize the dictatorial powers that the Constitution was designed to prevent.

The "War on Terror" provided the supporters of "unitary executive theory" with an unprecedented opportunity to act without any oversight whatsoever, but what made it even more shocking in its execution was that it effectively allowed no questions to be asked about whether or not the administration's policies were misguided, overzealous, or just plain wrong.

Buying prisoners for bounties and shredding the Geneva Conventions