Barack Obama began his presidency in courageous fashion. In his inaugural address, he boldly proclaimed, “We reject as false the choice between our safety and our ideals.” Then, on just his second day in office, he backed up his signature campaign promise by signing an executive order to close the Guantánamo prison within one year.
The administration of George W. Bush had a different approach to fighting terrorism. Just five days after the attacks of Sept. 11, 2001, Vice President Dick Cheney appeared on NBC’s Meet the Press and said the United States would need to work “the dark side” in its counterterrorism effort. “It’s going to be vital for us to use any means at our disposal, basically, to achieve our objective,” he explained.
Not only did these “means” include torture (called “enhanced interrogation” by its supporters), but the Bush administration also imprisoned men suspected of terrorism in an offshore location allegedly outside the jurisdiction of United States courts—or any law, for that matter. Mostly from 2002 to 2004, the United States transferred nearly 800 Muslim men to the U.S. Naval Base in Guantánamo Bay, Cuba, for indefinite detention without charges or trials.
In January 2009 the newly elected president, Barack Obama, sought to change course. As a first step to shuttering the prison, Greg Craig, the top White House lawyer, drew up a plan to release a few Uighur detainees, long cleared of wrongdoing, onto U.S. soil. Mr. Craig announced the plan at a national security meeting on April 17, 2009. Defense Secretary Robert Gates and Secretary of State Hillary Rodham Clinton were on board. “It was a matter of days, not weeks,” until the transfer would take place, a top Defense official told Time magazine. When the move proved successful, the administration hoped that other countries would be more willing to help resettle Guantánamo detainees.
Within a month the plan collapsed.
Four years later, Guantánamo remains open for business, indefinite detention continues and detainees are prosecuted in military commissions, not federal courts. Now it is not clear whether the prison will ever close—at least until the last prisoner grows old and dies. What caused such a dramatic reversal?
In “The Fall of Greg Craig, Obama’s Top Lawyer” (11/19/2009), Time magazine provides an account of what unfolded inside the White House during those first weeks of the Obama administration as they grappled with closing Guantánamo.
Just one day before Mr. Craig pitched his plan to the national security team, President Obama publicly released a series of memos from the U.S. Central Intelligence Agency that detailed the “enhanced interrogation” techniques used by the Bush administration. Michael Hayden, former C.I.A. director, had organized internal opposition to releasing the memos, but Mr. Obama did it anyway—consistent with his promise of greater transparency as well as taking the moral high road in the fight against terrorism.
Meanwhile Mr. Craig’s plan of releasing the Uighurs onto U.S. soil became public, and Republican leaders unleashed three weeks of relentless attacks against President Obama’s early foreign policy decisions. They claimed that Mr. Obama had emboldened America’s enemies by releasing the memos, and now he would endanger Americans by transferring prisoners into the United States—for release, further detention or trial.
Suddenly it was becoming too costly, politically, to take the moral high road. Time reported that, in late April, “Democratic pollsters charted a disturbing trend: a drop in Obama’s support among independents, driven in part by national-security issues.” Inside the White House, the early optimism and momentum faded. The administration was also concerned that the fight to close Guantánamo might distract from domestic priorities like health care and strengthening the economy.
In early May, Mr. Obama decided against releasing the Uighur detainees into the United States. “It was a political decision, to put it bluntly,” an aide told Time. Two weeks later, President Obama sought to address growing public discontent with a major speech on national security. In the speech, he not only announced that he would work with Congress to revamp the Bush-era military commissions, but he also embraced the use of indefinite detention without charges or trials for a group of detainees “who cannot be prosecuted yet who pose a clear danger to the American people.”
America’s Prison Problem
There are many plausible explanations for why President Obama failed to close the prison in his first term. He did not push hard enough. Conservative leaders successfully played on Americans’ fears. The administration was not prepared—or willing—to respond to the political attacks. Then the Congress, in bipartisan fashion, refused to allocate funds for closing the prison (and still continues to place restrictions on transferring detainees out of Guantánamo). Americans, collectively, are also responsible. If it had been politically popular for Mr. Obama to follow through on his promise to close Guantánamo, he would have.
But there is more to the story. If one looks a little deeper, it becomes clear that Guantánamo is merely a symptom of America’s larger problem with incarceration. Even of those Americans who actually want Guantánamo closed, most believe it is an aberration from the norm, a somewhat unprecedented and isolated stain on America’s reputation as a moral leader in the world. In reality, Guantánamo is consonant with America’s dismal record of incarceration of its own citizens.
At present, the United States incarcerates about 2.3 million men, women and children—a higher percentage of its citizens than any country in the world. Many are serving time for nonviolent crimes like drug offenses. Some states have enacted “three strikes” laws. In juvenile detention centers, children are sometimes punished by being confined to their cells for 23 hours a day. The death penalty is still legal in 33 of 50 states and in federal and military court. Confronted with overcrowding and limited budgets, many states have turned over their prisons to private corporations that turn a profit by keeping the beds full (see Editorial, 1/7).
If Americans are willing to live with such cruel practices at home, then it is not surprising that there is indifference toward or outright support for the continuing existence of Guantánamo. Why would Americans care about the human rights of a few hundred accused terrorists, especially when the detainees are consistently portrayed (often wrongly) as intent on killing Americans? Americans prefer to focus on the economy or health care (or the Super Bowl), and the Obama administration follows suit.
Early in his presidency, Mr. Obama made some progress in transferring prisoners out of Guantánamo, but this came to a halt because Congress restricted funding for such transfers. In the past two years, only four men have departed Guantánamo: Two Uighurs were resettled in El Salvador; Omar Khadr, detained since he was 15, was transferred to Canada to serve out a sentence; and Adnan Latif, a Yemeni, left in a coffin, having died from an overdose of psychiatric medication. (See Editorial, 10/22).
This leaves 166 men in Guantánamo. The vast majority of these detainees, 132, will not be charged: Eighty-six are approved for transfer or release, and 46 are being held indefinitely. The military is currently prosecuting seven detainees before military commissions and plans to prosecute 24 others. Three detainees are serving sentences.
Shortly before his reelection, Mr. Obama reiterated his intention to close Guantánamo. If he is serious about fulfilling this promise, he must act on two levels:
End the detention of those approved for transfer. Mr. Obama already missed his first opportunity to make substantial progress on closing Guantánamo when he—despite an earlier veto threat—once again signed the National Defense Authorization Act, which includes onerous restrictions on detainee transfers. Under the current law, it has become nearly impossible to transfer men out of Guantánamo, even those who have been cleared of wrongdoing for years.
Now, to regain momentum, Mr. Obama should immediately lift the moratorium on detainee transfers to Yemen. The Yemeni men who have been long cleared for transfer or release should begin going home. It is shamefully unjust to continue holding these detainees, not for what they have done, but because of their nationality.
End the so-called “war on terror.” The conventional path for closing Guantánamo is to transfer the remaining prisoners to the United States for prosecution or continued detention under the laws of war. This is a false path. Simply transferring the prisoners to an alternative location fails to address the major human rights concern with detentions at Guantánamo: indefinite detention without charges or trials. Mr. Obama has continued this Bush-era approach to fighting terrorism. It is the wrong approach. Anyone suspected of terrorism should be charged and tried in federal courts under the U.S. Constitution, not in extralegal systems without meaningful due process. Unfortunately both Congress and the Supreme Court support the current system.
Guantánamo will not close and the use of indefinite detention will not end until the U.S. brings the “war on terror” to a juridical close. Such an action would effectively undercut the (claimed) legal justification for wartime detention of enemy fighters until the “cessation of active hostilities.” While the idea of ending the “war on terror” might appear farfetched, it has recently gained currency thanks to a major speech by Jeh Johnson, outgoing general counsel for the Defense Department, at the Oxford Union in November 2012.
In the speech Mr. Johnson warned, “In its 12th year, we must not accept the current conflict, and all that it entails, as the ‘new normal.’” In evaluating various dimensions of the current conflict, he argued,“on the present course, there will come a tipping point” when “we must be able to say to ourselves that our efforts should no longer be considered an ‘armed conflict’ against al Qaeda and its associated forces.”
“‘War,’" Mr. Johnson explained, “must be regarded as a finite, extraordinary and unnatural state of affairs. …Peace must be regarded as the norm toward which the human race continually strives.”
So far, the Obama administration has made good on its public commitment to withdraw U.S. troops from Afghanistan “at a steady pace.” In 2014, according to the administration’s plan, Afghan forces will assume full security responsibility for the country. But the broader “war on terror” is another matter. Mr. Obama is responsible for executing drone strikes at unprecedented rates and dangerously treating the entire world as a battlefield for U.S. military strikes. Mr. Obama’s global war has expanded beyond Afghanistan and into countries like Pakistan and Yemen.
There is a lot at stake in Mr. Obama’s second term. When he leaves office in four years, which of Mr. Bush’s policy failures will remain in place? If the war on terror continues and Guantánamo remains open, it is likely that the war and the prison will be permanent elements of American foreign policy, and Americans will share responsibility for this. In the next four years, which course will Americans push Mr. Obama to follow?