On the 9th anniversary of the opening of Guantánamo, it may sound uncharitable to President Obama to be asking whether all plans to close the prison have failed, and to be asking whether it might remain in operation for as long as anyone can foresee. After all, the president may have failed to close it within a year of taking office, despite promising to do so in an executive order on his second day in the White House, but he and his spokespeople continue to assert that it remains their intention to close it.
In reality, however, it is reasonable to propose that Guantánamo is now a permanent institution for a variety of reasons. The first concerns a number of cynical moves by lawmakers in recent months, inserting provisions into a military spending bill that are explicitly designed to keep Guantánamo open — a ban on using funds to transfer Guantánamo prisoners to the U.S. mainland to face trials, a ban on using funds to buy or build a prison on the U.S. mainland to hold Guantánamo prisoners, and a ban on the release of any prisoner cleared for release by the president’s interagency Guantánamo Review Task Force (composed of representatives of government departments and the intelligence agencies) to countries considered dangerous by lawmakers — including Afghanistan, Pakistan, and Yemen.
On all of these challenges to his stated intentions — bringing at least some of the 33 men recommended for trials by the Task Force to the mainland to face federal court trials, holding them in a U.S. prison, and releasing some of the 89 prisoners “approved for transfer” by the Task Force — President Obama could have decided to override Congress. As was reported before Christmas, it was within the bounds of his authority to veto the legislation or to issue a signing statement striking down those parts of the spending bill that he considered to be an unconstitutional infringement of presidential authority.
In the end, however, demonstrating what many observers now regard as typical cowardice, he chose not to do so. A veto was always out of the question, because it threatened congressional authorization of billions of dollars to continue the ruinously expensive wars in Afghanistan and Iraq that no one in authority has any wish to end, but a signing statement, declaring the provisions as an unconstitutional infringement of executive power, was a distinct possibly, despite the negative connotations of signing statements after George W. Bush’s excessive use of them during his presidency. As David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, explained in an op-ed in the Wall Street Journal “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.” ,
Nevertheless, despite such trenchant criticism of Congress from conservative commentators, Obama refused to go as far as Rivkin and Casey, choosing instead to restrict his opposition to some fine sounding, but ultimately toothless grumbling. As the New York Times reported, “He sharply criticized those restrictions, but did not claim that he had the constitutional authority to disregard them,” and, instead, merely said he “would ask Congress to repeal the restrictions, seek to ‘mitigate their effects’ and oppose any attempt to extend or expand them after they expired in September, at the end of the current fiscal year.”
Criticizing the ban on bringing prisoners to the mainland to face trials, Obama defended the prosecution of terrorist suspects in federal court as “a powerful tool in our efforts to protect the nation,” and described the ban imposed by Congress as “a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests.” As a result of his refusal to overturn the provision, however, the 33 men recommended for trials by the Task Force will, for the most part, remain held without trial.
The administration is reportedly unwilling to proceed with trials by military commission, rightfully criticized as a second-tier judicial system by opponents, especially after the unjust and undignified plea deal arranged with former child prisoner Omar Khadr in October, and the main effect of Obama’s capitulation, therefore, is to hand victory to the lawmakers who inserted this provision specifically to prevent the president from proceeding with the federal court trial of Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. This trial was announced by Attorney General Eric Holder last November, but it met with fierce resistance from misguided Republican ideologues who are still sold on the Bush administration’s ruinous and misguided notion that terrorist suspects are warriors and not criminals.
Criticizing the ban on using military funds to release any of the 89 prisoners cleared by the Task Force unless, as the Times described it, Defense Secretary Robert Gates “certifies that the country has met a strict set of security conditions,” the president stated this process of certification, adding to security concerns already undertaken by the government, would “hinder the conduct of delicate negotiations with foreign countries” and “interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.”
On this point, the effect will be less noticeable, as 58 of the 89 men cleared for release by the Task Force have already been held indefinitely without charge or trial for a year because they are Yemenis, and last January, following hysterical overreaction to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had apparently been recruited in Yemen, the president announced a moratorium on releasing any Yemeni prisoners that is still in place, and shows no sign of being lifted. Of the other 31 men, the majority are awaiting third countries prepared to accept them, as they cannot be safely repatriated, because they face the risk of torture, and the administration, Congress, and the D.C. Circuit Court have all acted to make sure that none of them can be released in the United States. It is, therefore, unlikely that the congressional ban will apply to any of these men.
The only prisoners not covered by this ban are those cleared for release after winning their habeas petitions in the District Court in Washington, D.C. On this point, however, the president has done nothing but infuriate liberal supporters, when, on Monday, he repatriated an Algerian, Farhi Saeed bin Mohammed, against his will. Bin Mohammed had won his habeas petition in November 2009, but was terrified of returning to his home country, where, primarily, he feared being attacked by Islamist militants. On his behalf, the judge in his case, Judge Gladys Kessler, had strived to prevent his forcible repatriation, but had finally been overruled by the Supreme Court, paving the way for his return to Algeria on Monday.
The fact that the only man to be released since last August — and, very possibly, the only man to be released for the foreseeable future — was someone who was desperate not to be returned to his home country is a sad indictment of the position that President Obama has taken on the 9th anniversary of the opening of Guantánamo, two years after he promised to close the prison, and one year after he failed to do so.
As I have explained above, by refusing to confront Congress over its unconstitutional intrusions on his authority — and through his moratorium on releasing any Yemenis — he has ensured that there is no practical distinction between the 33 men proposed for trials by the Task Force, and the 89 men cleared for release, because almost all of them have now been consigned to indefinite detention without charge or trial for the foreseeable future.
Completing this picture are 48 other men, explicitly designated for indefinite detention without charge or trial by the Task Force. This has been an unacceptable proposal, ever since it was first signaled by the president in May 2009, as the men in question are regarded as being too dangerous to release, even though the administration concedes that it has no usable evidence to prove these assertions. This, of course, indicates that giving credence to unreliable information derived through torture played a key role in these determinations. The plans are also troubling because they so explicitly perpetuate the position taken by President Bush when he established Guantánamo, and because they give succor to those who want to see indefinite detention without charge or trial used again in the future, and on this front it was thoroughly depressing to hear, before Christmas, that Obama was considering issuing an executive order formally approving the indefinite detention of these 48 men, but guaranteeing that they would receive some sort of regular review of their cases.
A decision on this is expected soon, and it should be fiercely resisted by anyone who believes that the malignant experiment at Guantánamo has gone on for far too long, and that holding prisoners is only acceptable when they are either criminal suspects to be put forward for trials, or prisoners of war who can, in any case, be held until the end of hostilities. And if President Obama does go ahead and sign this executive order, it is incumbent on everyone opposed to the ongoing scandal of Guantánamo to point out that, with congressional interference and Obama’s moratorium, it is not just 48 prisoners who are proposed for indefinite detention without charge or trial, but almost every prisoner still held at Guantánamo — 170 men in total.
High hopes that Guantánamo would be closed by Obama may have been dashed within months of his taking office, but even the most cynical observer would have been hard-pressed to say at the time that, after two years, Obama would be presiding over a situation that was so similar to that created by Bush, Dick Cheney, and Donald Rumsfeld in 2002 — where the entire population of the prison is, in effect, arbitrarily detained, held indefinitely without charge or trial, regardless of whether or not the majority of them are supposed to have been freed or put on trial.
As the prison begins its 10th year of operations, this is a deeply depressing state of affairs, and one that anyone concerned with justice for the remaining prisoners should campaign about, complain about, and publicize relentlessly.