Ormond Papers

likely to support Obama’s position.29 A cycle is then perpetuated whereby increasing public opposition to the policy is mirrored in Congress as representatives seek to align themselves with their constituents.

Obama’s ability to build congressional support has been further undermined by the complex legal dilemmas associated with closing Guantanamo Bay. Each subset of detainees presents its own challenges to the administration. Firstly, if a detainee is cleared for release, to where should he be returned? In traditional interstate conflict, prisoners of war are repatriated to their home country, in whose armed forces they served.30 John Bellinger III, a US Department of State lawyer who advocated for the closure of Guantanamo, notes, ‘Sometimes we could not even identify a target state for repatriation because no state claimed an interest in the detainee in question’31. Furthermore, repatriation requires reasonable certainty that the released individual will not be subject to mistreatment after transfer, a guarantee that many of the detainees’ countries of origin cannot provide.32 These unanswered questions are likely to have reduced Obama’s support in the legislature, as many representatives who supported the policy in principle were reluctant to do so in reality in the absence of a comprehensive plan for these detainees. For example, Democratic Senator from Hawaii Daniel Inouye, Chairman of the Appropriations Committee, had put aside funds for Guantanamo’s closure if the administration proposed such a plan. In defending his decision to ultimately deny funding for the policy, he stated, ‘The fact that the administration has not offered a workable plan at this point made that decision rather easy’33.

In a broader sense, a question remains regarding those detainees who, like prisoners of war in conventional conflict, are deemed too dangerous to release but not suitable for trial due to inadmissible or insufficient evidence.34 In interstate warfare, these individuals would be held until the discontinuation of hostilities, at which point they would be repatriated. Under these conditions, preventive detention without trial is made legal in the knowledge that it will be temporally limited. The war on terror, however, is a different story. Even as US forces left Iraq and Afghanistan, the ‘war’ itself could have extended indefinitely into the future. How do you govern preventive detention in this kind of conflict?

The Geneva Conventions were not drafted with unconventional war in mind.35 Closing Guantanamo will not in itself solve this problem; rather, a legal framework for dealing with non-state actors needs to be developed so that such questions can be addressed.

The notion that congressional opposition has forestalled the closure of Guantanamo is relatively undisputed. However, some critics argue that the Obama administration has used this as an excuse for inaction, employing empty rhetoric to appease a liberal voter base while secretly enjoying the benefits of maintaining the status quo. Although it is impossible to know what Obama is thinking, this argument seems unconvincing: campaigning on the Guantanamo issue, signing an executive order for its closure within a week of inauguration, and persistently referring to the threat it poses to national security together imply that Obama’s intention is sincere. As Jack Goldsmith notes, ‘Despite the mismatch between rhetoric and reality in his speech, there is no reason to doubt that Obama genuinely wants to close Guantánamo Bay’36. The more interesting question concerns political will. Obama may personally wish to see the camp closed, but how much political capital he is willing to devote to this end is a separate 118