How Wartime Detention Ends

Abstract

Despite efforts by two presidents to end U.S. detention operations at Guantanamo Bay, Cuba, closing Guantanamo has proven to be an extraordinary challenge. Some of the reasons why are historically common problems of prisoner repatriation, such as finding host countries for those who cannot be repatriated without facing the risk of persecution. Yet one significant contemporary obstacle to Guantanamo closure is without identifiable precedent: statutory spending conditions sharply restricting the President’s ability to transfer detainees away from the prison. As this essay demonstrates, in none of the major wars of the past century did Congress impose any such restriction. Rather, for the thousands of prisoners held during these wars, including hundreds of thousands held in the United States, the disposition of prisoners was invariably handled by the executive branch. One need not embrace this historical practice as evidence of constitutional meaning to recognize its salience in current statutory and policy debates. Contrary to contemporary suggestions that the Guantanamo population presents unique challenges, U.S. history reveals prisoner repatriation to be common for prisoners whose home countries were politically unstable or in the midst of continuing conflict; prisoners who still harbored violent intentions toward the United States; and prisoners sympathetic to ideologically committed groups who continued to pose short- and long-term threats to the United States. Such factors are challenges indeed. But, as this essay seeks to demonstrate, they are deeply and historically familiar features of the end of war.