On Tuesday, Barack Obama gave his first detailed response to the prisonwide hunger strike that has been raging at Guantánamo for 12 weeks, responding to a question posed at a news conference by CBS News correspondent Bill Plante. He asked, “As you’re probably aware, there’s a growing hunger strike at Guantánamo Bay among prisoners. Is it any surprise really that they would prefer death rather than have no end in sight to their confinement?”
The question, presumably, was allowed because the president had decided that he could no longer avoid discussing the hunger strike that, at any moment, could result in the death of one of the many men starving themselves to focus the world’s attention on their plight. According to the government, 100 of the remaining 166 prisoners are on a hunger strike, although the prisoners say the true number is 130.
Precipitated by the deployment of a new and aggressive guard force at Guantánamo who manhandled the prisoners’ Korans during searches of the cells that were of unusual intensity, the hunger strike began on February 6 and rapidly became a focal point for the prisoners’ despair at having been abandoned by all three branches of the U.S. government and by the mainstream media.
Although 86 of the remaining prisoners were cleared for release from Guantánamo by an interagency task force that Obama established when he took office in January 2009 (when he promised to close Guantánamo within a year), they are still held because of obstructions raised by the president himself and by Congress.
Two-thirds of the cleared prisoners are Yemenis, but the president issued a ban on the release of Yemenis from Guantánamo after a failed bomb plot on a Detroit-bound plane on Christmas Day 2009, undertaken by a Nigerian man who was recruited in Yemen. That disgraceful decision was followed by Congress’s imposing severe restrictions on the release of any prisoners, requiring that the secretary of Defense certify that anyone to be released will be unable to engage in anti-American activities. That is a certification that appears to be impossible to make, unless freed men are to be immediately and permanently imprisoned on their return home — or are to be resettled in a third country.
On Tuesday, however, when confronted with his failures, Obama chose to sidestep them, blaming Congress instead. He did, however, deliver an eloquent analysis of why the prison at Guantánamo Bay is such an abomination.
Specifically, he said, “I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. 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.”
He also decried “the notion that we’re going to continue to keep over a hundred individuals in a no-man’s land, in perpetuity, even when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al-Qaeda core [and] when we’ve transferred detention authority in Afghanistan.” He further criticized “the idea that we would still [detain] forever a group of individuals who have not been tried.” That, he said, “is contrary to who we are, it is contrary to our interests, and it needs to stop.”
He also defended federal court trials and the domestic prison system as an alternative to Guantánamo, noting that, for those tried and convicted of offenses relating to terrorism, who are serving sentences in federal prisons on the U.S. mainland, “Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with the rule of law, consistent with our traditions.” As a result, he said, “we can handle this.”
He added, “I understand that, in the immediate aftermath of 9/11, with the traumas that had taken place, why for a lot of Americans the notion was somehow that we had to create a special facility like Guantánamo and we couldn’t handle this in a normal, conventional fashion. I understand that reaction. But we’re now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists. And this is a lingering problem that is not going to get better. It’s going to get worse. It’s going to fester.”
That is all true, but the president refused to accept his own responsibility for the fact that Guantánamo, on his watch, has become a place where indefinite detention without charge or trial is enshrined far more thoroughly than it was under George W. Bush. Instead, he stated, simply but incorrectly, “Congress determined that they would not let us close it.”
Obama also neglected to mention that it was he who revived the military commissions, and he who backed down on federal court trials when the administration was criticized for Attorney General Eric Holder’s announcement in November 2009 that the men accused of involvement in the 9/11 attacks would be tried in New York.
The president also toyed with a kind of self-pity when he added that closing Guantánamo is “a hard case to make, because, you know, I think for a lot of Americans the notion is: out of sight, out of mind.” He added that “it’s easy to demagogue the issue. That’s what happened the first time this came up” — as though his own inaction and obstruction was not a huge problem in and of itself.
In addition, the president inaccurately stated that “there are a number of the folks who are currently in Guantánamo who the courts have said could be returned to their country of origin or potentially a third country,” when, in fact, only three of the prisoners still held — three Uighurs, from Xinjiang province in China — were ordered to be released by a court in 2008. Much more significant — and truthful — is the fact that they and the 83 others were approved for release by the president ’s own task force.
Despite these evasions and distractions, it would be unfair not to allow the president the opportunity to fulfill his promise to engage with Congress, as it might be fruitful. As he said, “I’m going to … examine every option that we have administratively to try to deal with this issue, but ultimately we’re also going to need some help from Congress, and I’m going to ask some folks over there who care about fighting terrorism but also care about who we are as a people to step up and help me on it.”
Even so, it is clear that what the president didn’t mention in his news conference is at least as important as what he did talk about. He needs, for example, to acknowledge that it was he who put in place the initial prohibition against releasing cleared Yemenis, and he needs to very publicly drop his ban and acknowledge that clearing men for release but then holding them on the basis of their nationality alone is unacceptable. Last week, Sen. Dianne Feinstein provided some assistance on that point, writing to Tom Donilon, Obama’s national security adviser, to urge that the ban be lifted.
Taking this message to Congress would put lawmakers on the spot, but if they refuse to back down, the president needs to use the waiver included in the legislation preventing the release of prisoners, the National Defense Authorization Act, whereby the president and the secretary of Defense can certify prisoners for release without Congressional approval, if they conclude that it is in the best interests of the country.
That is not a route to be chosen lightly, but it exists in the legislation, and it needs to be used to resume the release of prisoners if other discussions come to nothing. Just four prisoners have been released since Congress first imposed restrictions 16 months ago — two Uighurs through the court order back in 2008, and two others because of plea deals negotiated in their military commission trials at Guantánamo.
It is also probable that the president needs to appoint someone to deal specifically with the closure of Guantánamo — not to replace Daniel Fried of the State Department, who was charged with the task of resettlement and whose office was closed earlier this year, but to replace Greg Craig. The White House Counsel during Obama’s first year in office, Craig drove the proposals to close Guantánamo but was then let down by the president and by certain key advisors who saw Guantánamo not as an abomination but, cynically, as a waste of political capital.
The best that can be said of Obama’s performance on Tuesday is that the words he uttered can be used to hammer home to him the ongoing injustice of the prison, if he tries, as he has before, to lose interest in it. Mostly, though, what is needed is action — action to persuade Congress to drop its restriction on the release of prisoners, and action and honesty by Obama himself: on his Yemeni ban, on the need to appoint someone to deal with the closure of Guantanamo on a full-time basis, and, if necessary, on releasing prisoners through the waiver in the NDAA.
He also, as an urgent matter, needs to initiate review boards for 46 other prisoners whom he consigned to indefinite detention without charge or trial in an executive order in March 2011, on the basis that they are regarded as too dangerous to release, even though insufficient evidence exists to put them on trial. That is and was an unacceptable decision to take, but the only proviso that tempered it ever so slightly was the president’s promise to initiate periodic reviews of the men’s cases, which, over two years later, have not taken place.
In conclusion, action is not only needed, it is needed urgently, before prisoners die. Sending Shaker Aamer, the last British resident, back to his family in the UK would be a sensible start. After all, no lawmaker could realistically claim that the UK, America’s “special friend” and its staunchest ally in the “war on terror,” is unable to guarantee the safety of the U.S. on his release. As a result, Shaker could — and should — be on a plane home to his family in London tomorrow, to be followed in the weeks that follow with dozens more of the cleared prisoners, to be sent, to name just a few examples, to Tunisia and Afghanistan.
Inertia — like the use of fine words alone — is no longer an option.
