Foreign Policy / News / Politics

Indefinite Dissension: Obama needs to get real on Guantanamo Bay

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Prompted by the news of more than 100 prisoners at Guantanamo Bay going on hunger strikes to protest their detentions, President Obama made some remarks this week that had many reminiscing back to the days of Candidate Obama, as he restated in unequivocal terms his desire to close the controversial prison. “I think it is critical for us to understand that Guantanamo is not necessary to keep us safe,” he said. “It is expensive, it is inefficient, it hurts us in terms of our international standing, it lessens cooperation with our allies on counterterrorism efforts, it is a recruitment tool for extremists. It needs to be closed.”

For many, it was a welcome return to the kind of principled rhetoric they’ve been hoping to hear from the president. But for me, well… I find it difficult not to see Obama’s moralizing on this issue as shedding crocodile tears. While there is no doubt that Congress has stymied the efforts to close Gitmo, not all of the blame can be laid at their feet. At best, the Obama administration has continued to show unwillingness to expend political capital on this issue; at worst, the administration has shown downright hypocrisy.

First, the legal restrictions enacted by Congress are not totally insurmountable. The National Defense Authorization Act has declared that no money can be spent to transfer the detainees to the mainland United States, but it does allow for the transfer of prisoners to other countries. The problem is that the NDAA contains a very stringent certification to be performed by the Secretary of Defense before a detainee can be released from Gitmo to another country, such as providing relative assurances that the process of transferring the detainee “will substantially mitigate the risk of recidivism” in terrorist activities. A difficult hurdle, indeed, but nowhere near impossible. And it should be noted that Obama had originally threatened to veto the NDAA, but then he decided to sign it into law anyway, tacking on a toothless signing statement as his only protest. This suggests to me that he was not actually inclined to ante up any real political capital here.

Furthermore, the Obama administration has hamstrung itself through self-imposed restrictions when it comes to releasing some of the prisoners. There are currently 166 detainees still languishing in limbo at the prison, 86 of which have already been cleared for release. The majority of those 86 are of Yemeni origin, but the administration refuses to release any prisoners to countries considered to be hotbeds of terrorism, such as Yemen. This restriction was imposed in 2009 after it was discovered that the failed Christmas Day bomber had been recruited by Anwar al-Awlaki and other extremists in Yemen. But even Sen. Diane Feinstein, who once supported this restriction, has recently urged the administration to abandon this self-imposed policy.

And let’s make one thing very clear: The real issue is not about Guantanamo Bay itself; the issue is about indefinite detention. I don’t care if you move them from Gitmo to a converted federal prison in Illinois or to a Ramada Inn in Toledo, Ohio. The point is not their surroundings; it’s that they’re being held indefinitely without charge.

Obama alluded to such at the press conference when he said, “The idea that we would still maintain forever a group of individuals who have not been tried—that is contrary to who we are, it is contrary to our interests, and it needs to stop.” OK, sounds nice for the cameras, Mr. President, but it is your own administration that has fought through the courts the release of some of these prisoners and determined 46 of the detainees to be “too dangerous to transfer but not feasible for prosecution,” which is a fancy way of saying there isn’t enough evidence to charge them with any crimes. Holding these 46 detainees indefinitely is the official policy of this administration, regardless of anything Congress has done. So, Obama’s soapbox sermonizing feels a bit frustratingly disingenuous, like an older brother doing the “stop hitting yourself” routine.

If Obama wants to get real on this issue then he has the political tools at his disposal to do so. While it may be nice to hear him reinvigorated, if he doesn’t follow through with anything substantive, then we should dismiss his recent comments about closing Gitmo as nothing more than posturing and empty rhetoric. Meanwhile, we have detainees already cleared for release after being held for years without charge who are being force-fed through tubes. Contrary to who we are, you say? Then get real about it, Mr. President.

Timeline of Gitmo-related legislation and cases

  • September 18, 2001: President Bush signs into law the Authorization for Use of Military Force Against Terrorists that granted the President the authority to wage war against those responsible for the 9/11 attacks
  • June 28, 2004: The Supreme Court decides in the case Hamdi v. Rumsfeld that the government has the war-powers right to detainee enemy combatants and that only U.S. citizen detainees have the right to due process
  • June 28, 2004: The Supreme Court decides in the case Rasul v. Bush that U.S. courts have the jurisdiction to hear habeas corpus petitions from foreign nationals at Gitmo
  • June 29, 2006: The Supreme Court decides in the case Hamdan v. Rumsfeld that the military commissions system used to try detainees violates the Geneva Conventions and the Uniform Code of Military Justice
  • October 17, 2006: President Bush signs Military Commissions Act of 2006 that denies habeas corpus to detainees and sets up congressionally authorized military tribunals
  • June 12, 2008: The Supreme Court decides in the case Boumediene v. Bush that the detainees have the right to habeas corpus and that the Military Commissions Act of 2006 was unconstitutional
  • January 22, 2009: President Obama signs executive order for Gitmo to be closed within a year
  • October 28, 2009: President Obama signs into law the Military Commissions Act of 2009, Title XVIII of the NDAA for FY 2010, which revamps the military tribunal system
  • May 19, 2010: House Armed Services Committee reject plan to shift detainees to Illinois
  • March 7, 2011​: President Obama signs another executive order to create a review process for detainees
  • December 14, 2011: President Obama signs into law the NDAA for FY 2012, which makes illegal any funds for sending detainees to the mainland and sets up a near-impossible certification process for transferring detainees to other countries
  • June 11, 2012: The Supreme Court refuses to hear appeals in seven habeas corpus cases involving detainees challenging the legality of their imprisonment
  • January 10, 2013: President Obama signs into law the NDAA for FY 2013, which again makes it illegal to spend funds for sending detainees to the mainland and a new rigorous, but not impossible, certification process for transferring detainees to other countries
  • January 28, 2013: The State Department shuts down the office of the envoy for closing Gitmo
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