In Boumediene v. Bush,1553 U.S. 723 (2008). the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause,2U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). had “full effect” at Guantanamo Bay, Cuba.3Boumediene, 553 U.S. at 771. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause,4U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”). should influence the analysis. After Boumediene, the D.C. Circuit maintained that habeas only protected the fact, place, or duration of detention,5See, e.g., Maqaleh v. Hagel, 738 F.3d 312, 329 (D.C. Cir. 2013); Kiyemba v. Obama (Kiyemba I), 555 F.3d 1022, 1026 (D.C. Cir. 2009). and it expressly refused to apply due process to extraterritorial habeas challenges.6See Kiyemba I, 555 F.3d at 1026 (“[T]he due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”). It also strictly enforced the categorical dichotomy prescribed by the Military Commissions Act (MCA), which restored federal habeas jurisdiction but stripped jurisdiction over “any other action . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of detainees.728 U.S.C. § 2241(e)(2) (2012). Indeed, after almost ten years of litigation, many commentators condemned the D.C. Circuit for practically vitiating Boumediene’s holding.8See Stephen I. Vladeck, The D.C. Circuit After Boumediene, 41 Seton Hall L. Rev. 1451, 1453 (2011).
But in Aamer v. Obama9742 F.3d 1023 (D.C. Cir. 2014).—brought to enjoin the physically invasive force-feeding procedures used against hunger strikers at Guantanamo10Appellants’ Reply Brief at 20, Aamer, 742 F.3d 1023 (No. 13-5223).—the D.C. Circuit recently held that a habeas suit can be brought to challenge more than the fact, place, or duration of detention.11Aamer, 742 F.3d at 1026, 1038. Substantially broadening its previous interpretation of the writ, the D.C. Circuit ruled that habeas jurisdiction can encompass challenges to conditions of confinement—one of the “other action[s]” proscribed by the MCA. Even though the detainees’ claim failed on the merits, the detainees were ultimately permitted to challenge the government’s procedures as an unlawful violation of the right against unwanted medical treatment.
In effect, Aamer creates an interesting paradox: despite the D.C. Circuit’s decisions ruling otherwise, noncitizen detainees at Guantanamo are effectively allowed to bring due process challenges, but under the auspices of habeas corpus. Further exploring the habeas-due process relationship in prior case law and scholarship, this Essay will consider this paradox as applied in Aamer and future prisoner litigation.
I. The Habeas-Due Process Relationship
Much has been written regarding the “inextricably intertwined”12Fay v. Noia, 372 U.S. 391, 401 (1963). yet “completely unsettled”13Martin H. Redish & Colleen McNamara, Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism, 96 Va. L. Rev. 1361, 1364 (2010). relationship between habeas corpus and due process.14See David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on Congress’s Control of Federal Jurisdiction, 86 Geo. L.J. 2481, 2503 (1998) (“[B]oth habeas corpus and due process require that taking an individual into custody be subject to the rule of law. . . . The two principles work in tandem to require judicial review of the legality of all executive detentions. Barring judicial review of any such detention would violate due process, and any such detention must be redressable on habeas corpus.”). The ambiguity stems from two independently amorphous doctrines, which share historical origins15See 1 William Blackstone, Commentaries *133-34 (linking the guarantees of the Magna Carta and the writ of habeas corpus to the battle against royal despotism). and were almost always jointly applied before Boumediene.16See Joshua Alexander Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment After Boumediene and the Relationship Between Habeas Corpus and Due Process, 14 U. Pa. J. Const. L. 719, 748 (2012) (“Because the prevailing assumption has been that habeas and due process generally stand or fall together, the few cases and writings addressing both habeas and due process have explored the nature and extent of judicial protections when both clauses are inapplicable or, more typically, when both clauses are applicable.” (footnote omitted)). Indeed, as Justice Brennan wrote in 1963, “[v]indication of due process is precisely [the Great Writ’s] historic office.”17Fay, 372 U.S. at 402; see also id. at 405 (“[A]t the time that the Suspension Clause was written into our Federal Constitution and the first Judiciary Act was passed conferring habeas corpus jurisdiction upon the federal judiciary, there was respectable common-law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law [under due process].”); Heikkila v. Barber, 345 U.S. 229, 236 (1953) (“Regardless of whether or not the scope of inquiry on habeas corpus has been expanded, the function of the courts has always been limited to the enforcement of due process requirements.” (footnote omitted)). Still, the Supreme Court has avoided “answer[ing] the difficult question of what the Suspension Clause protects,”18INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001). leaving the content of the writ and the contours of the habeas-due process relationship undefined. While this Essay cannot fully explore those contours, it concludes, like most of the academic community, that at least some substantive due process protections follow on the heels of habeas corpus and that the two clauses may be inextricable in some contexts.
The Supreme Court’s definition of the habeas-due process relationship was central in Boumediene. By extending the Suspension Clause extraterritorially at Guantanamo, the Court made clear that the Clause was more than just an “empty vessel” used to achieve a remedial or procedural outcome.19Brandon L. Garrett, Habeas Corpus and Due Process, 98 Cornell L. Rev. 47, 52 (2012). But “it did not specify what process the Suspension Clause ensures, nor to what degree due process concerns influence the analysis.”20Id. at 53. Following the decision, many predicted a faithful application of Boumediene’s functional approach,21See, e.g., Vladeck, supra note 8, at 1477 (“Boumediene, . . . though not about the Due Process Clause, may well recalibrate the Court’s approach to whether all individual constitutional rights apply extraterritorially, including whether the Guantánamo detainees are entitled to due process protections.”). which affords a constitutional right extraterritorially if doing so would not be “impracticable and anomalous.”22Boumediene v. Bush, 553 U.S. 723, 759 (2008) (quoting Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring in the result)) (internal quotation marks omitted); see also Geltzer, supra note 16, at 772-73. And, because of its tight nexus with habeas, many anticipated that due process would be the next right afforded.23See, e.g., Benjamin J. Priester, Terrorist Detention: Directions for Reform, 43 U. Rich. L. Rev. 1021, 1036 (2009) (“[P]erhaps the Due Process Clause, not just the Suspension Clause, reaches Guantánamo.”); Stephen I. Vladeck, Access to Counsel, Res Judicata, and the Future of Habeas at Guantanamo, 161 U. Pa. L. Rev. PENNumbra 78, 87 (2012), http://www.pennlawreview.com/online/161-U-Pa-L-Rev-PENNumbra-78.pdf. (“[T]he courts will eventually hold that the Due Process Clause places limits on the type and length of detentions that are otherwise lawful.”). Former Solicitor General Neal Katyal reasoned, “Boumediene’s right to habeas corpus would be meaningless if there were no substantive rights to protect.”24Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Non-Governmental Perspective: Hearing Before the H. Comm. on Armed Servs., 110th Cong. (2008) (prepared statement of Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center), available at http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1078&context=cong. Thus, apart from the extraterritoriality question, one implicit question was left unanswered: If the Suspension Clause was indeed more than just an empty vessel, then what rights or protections would accompany it?
The answer proved increasingly unclear. The D.C. Circuit quickly rejected procedural protections for detainees’ trials,25See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 876 (D.C. Cir. 2010) (“The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.”). and, again, it explicitly declined to apply due process.26Kiyemba I, 555 F.3d 1022, 1026 (D.C. Cir. 2009). But some opinions suggested that due process protections might be applied in certain situations.27See Vladeck, supra note 23, at 87-90; see also Al-Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (holding that even if the petitioner had a constitutional right to due process and the district court violated it by relying on evidence outside of the record, such error would be harmless); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 512 (D.C. Cir. 2009) (recognizing habeas claims even if those claims were “ancillary” to the traditional or “core” protections of habeas (internal quotation marks omitted)). Gradually (or perhaps inevitably), lower courts began to conflate the two rights. For instance, in In re Guantanamo Bay Detainee Continued Access to Counsel, the district court asserted: “‘[A]ccess to the Court [granted in Boumediene] means nothing without access to counsel.’ They are inseparable concepts and must run together.”28892 F. Supp. 2d 8, 15 (D.D.C. 2012) (citation omitted) (quoting Al-Joudi v. Bush, 406 F. Supp. 2d 13, 22 (D.D.C. 2005)). It is an easy but significant step to conclude that access to counsel became part and parcel of Boumediene’s holding. As Stephen Vladeck reasoned:
In every other context, . . . the Supreme Court has assessed a litigant’s right of access to counsel according to traditional due process analysis . . . . And so, unless the right of access to counsel could be traced simultaneously (or independently) to both the Due Process Clause and the Suspension Clause, the real significance of [In re Guantanamo Bay] may be the implicit but necessary conclusion that the detainees do have at least a modicum of due process rights.29Vladeck, supra note 23, at 90 (footnote omitted).
Access to counsel is one example of how the right to habeas corpus may necessarily be comprised of some other protections to give it substance. Of course, this example could equally be viewed as habeas corpus bringing along independent due process rights. Though the correct framing may be mere semantics, recognition of the clauses’ inextricability may eventually necessitate an affirmative answer to the post-Boumediene question in the D.C. Circuit. This could have significant implications for future litigation brought by prisoners in the D.C. Circuit.
The next Part will discuss the significance of Aamer’s newly expanded habeas protection: if detainees can challenge the conditions of their confinement through habeas corpus, then certain substantive due process protections are being afforded.
II. Aamer v. Obama
A. Background Information
The detainees in Aamer contested the “painful, humiliating, and degrading” forcible tube-feeding process used on them in their 2013 hunger strikes.30Aamer v. Obama, 742 F.3d 1023, 1027 (D.C. Cir. 2014) (quoting Dhiab v. Obama, 952 F. Supp. 2d 154, 156 (D.D.C. 2013)). As expected, two lower court judges held that the MCA stripped the courts of jurisdiction, characterizing the claims as challenges to conditions of confinement. 31See Aamer v. Obama, 953 F. Supp. 2d 213, 218 (D.D.C. 2013); Dhiab, 952 F. Supp. 2d at 155. This was not the first time litigation surrounding force-feeding fell short: the lower courts have denied preliminary injunctions a number of times since 2005. See, e.g., Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 108-09 (D.D.C. 2010) (dismissing Fifth and Eighth Amendment claims on grounds that the MCA strips the courts of jurisdiction), aff’d, 669 F.3d 315 (D.C. Cir. 2012); Al-Adahi v. Obama, 596 F. Supp. 2d 111, 117-18 (D.D.C. 2009) (denying jurisdiction under the MCA). On appeal before the D.C. Circuit, the two-to-one panel disagreed: it held that challenges to conditions of confinement properly sound in habeas, even though they fall outside the “historical core” of the writ.32Aamer, 742 F.3d at 1030. This ruling applied not only to Guantanamo detainees subject to the MCA but also to all federal habeas appeals.33See Steve Vladeck, The True Significance of Judge Tatel’s Opinion in the Force-Feeding Appeal, Just Security (Feb. 11, 2014, 2:53 PM), http://justsecurity.org/7016/true-significance-judge-tatels-opinion-force-feeding-appeal.
After extending habeas jurisdiction, the court turned to the merits. It concluded that the government’s legitimate interests in preserving life and maintaining order and security could possibly justify the force-feeding of hunger-striking detainees.34Aamer, 742 F.3d at 1041. Though the preliminary injunction failed on the merits, the court reasoned that it was “conceivable that petitioners could establish” a valid constitutional claim on remand.35Id.
The Aamer decision suggests that the D.C. Circuit used habeas jurisdiction to effectuate prisoners’ underlying due process rights. This is evident in two primary ways. First, the court relied on detainees’ underlying constitutional rights in broadening habeas as a jurisdictional matter. Second, it assumed that detainees possess due process rights as a basis for the court’s adjudication on the merits. Ultimately, this allowed the detainees to assert a quintessential substantive due process claim.
Jurisdictionally, Aamer relied on detainees’ underlying substantive rights in affording the newly broadened habeas remedy. In the court’s lengthy discussion assessing the scope of habeas, much of its analysis proceeded entirely on the bases of otherwise-adjudicable constitutional rights. For instance, Aamer relied on precedent upholding a federal prisoner’s transfer to another institution via habeas in “circumstances so extreme as to transgress constitutional prohibitions.”36Miller v. Overholser, 206 F.2d 415, 419 (D.C. Cir. 1953) (emphasis added). It similarly relied on precedent finding that subjecting an inmate “to cruel and unusual punishment, to punishment without cause, and to unconstitutional discrimination” approximated an “unlawful deprivation of liberty” under habeas.37Hudson v. Hardy, 424 F.2d 854, 855 (D.C. Cir. 1970). Yet similar constitutional due process rights have been consistently denied to noncitizen detainees at Guantanamo. When habeas is properly expanded to encompass challenges to conditions of confinement, therefore, it is usually the litigant’s underlying rights that give force to that challenge. This demonstrates the difficulty (and perhaps impossibility) of parsing habeas from the due process rights that so often comprise it.
Substantively, Aamer relied on constitutional due process claims in its adjudication on the merits. At the threshold, the court made the following concession: “[W]e shall, for purposes of this case, assume without deciding that the constitutional right to be free from unwanted medical treatment extends to nonresident aliens detained at Guantanamo . . . .”38Aamer, 742 F.3d at 1039. While the D.C. Circuit had made similar concessions in the past, this assumption was the predicate for the Aamer court’s analysis on the merits. It paved the way for the ultimate consequence: detainees may bring habeas claims based on substantive due process challenges—here, the right to be free from unwanted bodily intrusion—even though they do not technically possess these rights under D.C. Circuit precedent. Indeed, effectively extending due process in this manner could impact a number of claims currently denied to detainees, including civil damages actions and criminal trials in federal court.39See Geltzer, supra note 16, at 730-33.
Moreover, on the merits, the Aamer court used the standard set out in Turner v. Safley40482 U.S. 78 (1987).—yet another case that rests entirely on the constitutional rights of those imprisoned in the United States—to evaluate the detainees’ claim. Turner established a test for assessing the legality of a prison regulation that “impinges on inmates’ constitutional rights,” holding that such regulation is “valid if it is reasonably related to legitimate penological interests.”41Id. at 89 (emphasis added). Even though the preliminary injunction was denied under this standard, the Aamer court still (1) permitted a full analysis on the substance of the detainees’ force-feeding claim, and (2) anticipated an even fuller analysis on the claim below.42See Aamer, 742 F.3d at 1041. As a result, detainees are able to challenge the government’s force-feeding procedures as an unlawful deprivation of liberty.
Indeed, Aamer’s newly broadened habeas right opens the door for future challenges to conditions of confinement by prisoners within the D.C. Circuit. Ultimately, perhaps this will lead to a better understanding of the paradox of extending the right of habeas corpus without correlative due process protections. Whatever the result, it seems that Boumediene is far from dead, and future detainee litigation—based on habeas or, perhaps, due process—is far from over.
Mary Van Houten thanks Janet Alexander and Lucas Guttentag for their invaluable support throughout the writing process.
It is hard to believe that the Guantanamo Bay detention facility is back in the headlines fifteen years after it opened and eight years after President Obama ordered it closed. Having been present at its creation in 2001/2002 and having supported its closure in 2009, I want to provide a few observations for those new to the controversy. Drawing on some of my past posts, I will remind readers why Guantanamo was opened and why I believe it should now be closed.
Why Guantanamo Bay Was Opened
The Guantanamo Bay detention facility was not a political initiative of the Bush White House. It was established in early January 2002 because the Defense Department needed a secure and adequately equipped facility to hold and interrogate hundreds of Al Qaida and Taliban terror suspects who had been captured by, or turned over to, U.S. and coalition forces in Afghanistan after the invasion of Afghanistan in October 2001.
In December 2001, U.S. military commanders in Afghanistan had advised that the temporary detention facility at Kandahar air field where many suspected Taliban and Al Qaida members were being held was neither secure nor adequate as a detention and interrogation facility. (Combat operations against Taliban fighters were continuing around Kandahar into early 2002.) The commanders asked decisionmakers in Washington to find a more permanent facility with more established infrastructure where detainees could be held and questioned. At this early stage, U.S. government officials did not know who was responsible for the 9-11 attacks and feared additional terrorist attacks; a detention facility was needed where detainees could be questioned in detail about the 9-11 attacks and possible future attacks and held for prosecution by military commissions, which had been established by President Bush’s military order of November 13, 2001.
An interagency group (in which I participated) including officials from DoD, DoJ, CIA, the State Department, and the NSC staff held extensive meetings in Washington in December 2001 to consider possible options for a longer-term detention and interrogation facility. Contrary to revisionist histories written by critics of the facility, Guantanamo was not chosen primarily because it was outside the United States and not subject to the jurisdiction of U.S. courts. This was certainly one factor (DoJ and DoD lawyers did not want the detainees immediately mounting legal challenges and seeking to retain lawyers while still being questioned about further terrorist attacks), but it was not the determining factor. Other more important factors included the need to find a completely secure facility outside Afghanistan that was available immediately, convenient to the United States, relatively low-cost, and that had sufficient supporting infrastructure for both the detainees and guard force. Other locations were considered, but Guantanamo Bay—an existing Navy base on an island close to the United States that had already been used as a detention facility for thousands of Cuban refugees in the 1990s during the Clinton Administration—was the consensus option. The first detainees arrived from Kandahar on January 11, 2002.
In his June 2013 NDU speech, President Obama—echoing critics of Guantanamo—called Guantanamo “a facility that should never have been opened.” Although I came to believe by the middle of the Bush Administration that Guantanamo should be closed because it was doing more harm than good, President Obama is wrong to have asserted that the facility should never have been opened, and it was counterproductive for him to have done so if he really wanted to close it. As I have explained in this post after President Obama’s NDU speech, I am not convinced that Obama Administration officials—without the benefit of hindsight—would have made a different decision in 2001. The decision to open the detention facility in Guantanamo was not a political decision by senior Bush Administration appointees, but a practical decision based on the analysis and recommendations of career national security officials. Would the Obama Administration in 2001 have overruled military commanders and insisted that al Qaida and Taliban detainees all remain in Afghanistan? Or would they have insisted that they all be moved to the United States? Many civil liberties groups continue to insist that Taliban and Al Qaida detainees should not have been held as combatants but instead charged with federal crimes, prosecuted in federal courts, or released. But that was easier said than done: as I have explained previously, it was not immediately apparent in December 2001 that individual detainees in Kandahar had committed federal crimes or that there was admissible physical evidence and witness testimony to support federal prosecutions against them. Perhaps civil liberties groups are suggesting that, without that evidence immediately available, the detainees should have been immediately released, rather than held and questioned. To complicate matters, federal criminal law did not apply extraterritorially in 2001 to acts of material support to terrorism committed outside the United States by non-US nationals, so it is not clear whether any Taliban or al Qaida detainees could have prosecuted for federal crimes unless they had actually engaged in acts of terrorism.
President Obama blamed congressional Republicans for politicizing Guantanamo and thwarting his efforts to close it. But Democrats controlled both the House and the Senate when restrictions on closing Guantanamo were first enacted in 2009. And President Obama himself contributed heavily to the politicization of Guantanamo by pandering to his base and blaming President Bush (and impugning his motives) for opening it.
As I said in this post in January 2015:
it would be wiser for the President [Obama] to stop—once and for all—trying to score political points with Guantanamo and simply acknowledge the truth: Whatever mistakes were made in the initial creation and operation of Guantanamo, there were also understandable and legitimate military reasons to open Guantanamo in 2002 as a detention and interrogation facility after the 9/11 attacks, but the facility has outlived its comparative usefulness and its costs to U.S. national security now outweigh its remaining benefits.
Acknowledging that there were reasons to open Guantanamo in 2002 is not an endorsement of every aspect of the Guantanamo detention program. Obviously, much has been mishandled, either intentionally (like detainee abuse) or unintentionally (like the orange jump suits). Many of those initially detained in Afghanistan (like the Uighurs) should not have been sent to Guantanamo in the first place. Many of the individuals sent to Guantanamo should have been released sooner, and many officials in the Bush Administration worked hard to speed up the processes for screening and transfer or release.
Why Guantanamo Should Be Closed and No New Detainees Should Be Transferred In
As is now well-known, of the 775 detainees transferred into Guantanamo, the Bush Administration transferred more than 500 detainees out of Guantanamo between 2002-2009. Contrary to the recent statement by White House Press Secretary Sean Spicer, the vast majority of these were not transferred out pursuant to “court order.” Only a handful were transferred out of Guantanamo in December 2008 and January 2009 because of court orders after the Supreme Court decided in Boumediene v Bush that detainees should have the habeas court right to challenge their detention. In fact, the Bush Administration voluntarily transferred 532 detainees to other countries, mostly to the countries of their nationality, so that they could be prosecuted, detained, or monitored by their own governments. Although Bush Administration officials had serious concerns about recidivism, the President and his National Security Council concluded that the United States could not continue to hold hundreds of detainees indefinitely and decided that their own governments should instead take responsibility for them. As President Bush said in his memoir: “While I believe opening Guantanamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security.”
The Obama Administration transferred another 182 detainees out of Guantanamo between 2009-2017. Unlike the Bush Administration, most of these were transferred for immediate release, rather than potential continued detention and prosecution. Forty-one detainees now remain, including several who have been previously approved for transfer by an interagency review board.
Although it may be politically popular with some of the Administration’s supporters, it would be a mistake for the Trump Administration to try to repopulate Guantanamo with new detainees from the Islamic State or Al Qaida-affiliated groups, as President Trump and Attorney General Sessions have said they want to do. The Trump Administration should learn from the bitter legal and policy experiences of the Bush Administration: adding new detainees to Guantanamo will produce more (and more risky) lawsuits; difficult practical problems down the road as to what to do with the detainees; and unnecessary friction with allies. Guantanamo detainees have prevailed in numerous challenges to their detention in federal courts (including four cases before the Supreme Court). Any new ISIS detainees in Guantanamo would undoubtedly claim in habeas petitions that the 2001 AUMF does not authorize their detention because it is limited to the organizations responsible for the 9-11 attacks. As Jack Goldsmith has pointed out, “it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF does not extend to ISIL.” And as I explained in my Lloyd Cutler lecture last fall, our allies are likely to cut back on intelligence, law enforcement, and military cooperation if they believe the United States is not acting consistent with international law and our shared democratic values.
President Trump and Attorney General Sessions should instead consider a “Nixon to China” policy of seeking legislation that would allow the President to close Guantanamo and transfer the remaining detainees to their own governments and to one or more military and/or federal detention facilities in the United States for continued detention and potential prosecution. It is highly unlikely that any detainee could escape from a maximum security prison in the United States. Although it is possible that detainees held in the United States could bring additional legal challenges to their detention, detainees have already been successful in legal challenges while detained in Guantanamo; it will be difficult for the remaining detainees who have not been cleared for release to persuade a federal court that they should be released or given immigration rights. President Trump, Attorney General Sessions, Secretaries Mattis and Kelly, CIA Director Pompeo and DNI-designate Coats should consult with the experienced lawyers and policy experts in their departments about the risks of costs and benefits of Guantanamo. They are likely to find that repopulating Guantanamo will produce more costs and risks than benefits and that it would be both preferable, and possible, to achieve President Bush’s goal of closing Guantanamo without compromising security.