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. In an interview just five days after the attacks of Sept. 11, 2001, Vice President Dick Cheney 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. President Obama sought to change course.
In an effort to clear the prison, Greg Craig, the top White House lawyer, drew up an early 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 17 April 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, Time magazine later reported (Massimo Calabresi and Michael Weisskopf, “The Fall of Greg Craig, Obama’s Top Lawyer,” Time magazine, 19 November 2009). If this worked well, the administration hoped that third countries would be more willing to help resettle other 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?
Just one day before 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” (torture) used by the Bush administration. Michael Hayden, former C.I.A. director, had organized internal opposition to releasing the memos, but 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 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 Obama had emboldened America’s enemies by releasing the memos, and now he would endanger Americans by transferring prisoners into the U.S.—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 also felt concern that Guantánamo might distract from domestic priorities like health care and strengthening the economy.
In early May, 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 explanations for why President Obama failed to close the prison in his first term. He didn’t push hard enough. Republicans played on Americans’ fears. The administration wasn’t prepared—or willing—to respond to the Republican attacks. Later the U.S. Congress, in bipartisan fashion, placed restrictions on transferring detainees out of Guantánamo. Americans, collectively, are also responsible. If it had been politically popular for President 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. Most Americans believe that Guantánamo is an aberration from the norm, that it is an unprecedented and isolated stain on America’s reputation as a moral leader in the world. In reality, Guantánamo is consistent with America’s dismal record of incarceration of its own citizens.
At present, the United States incarcerates about two 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 laws that require life imprisonment for third offenses. In juvenile detention centers, children are punished by being confined to their cells for 23 hours a day. The death penalty is still legal in 33 of 50 states and at the federal level. Confronted with overcrowding and limited budgets, many states have turned over their prisons to private corporations that keep costs low and turn a profit by keeping the beds full.
If Americans embrace 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 destroying Americans? Americans do prefer to focus on the economy, or health care, and the Obama administration follows suit.
Early in his presidency, 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.
This leaves 166 men in Guantánamo. The vast majority of these detainees, 132, will not be charged: 86 are approved for transfer or release while 46 are being held indefinitely, subject to periodic review. 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, President 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. As a first step, President Obama should lift the moratorium on detainee transfers to Yemen. He should also veto any defense budget that includes restrictions on his ability to transfer detainees out of Guantánamo. Obama has already signaled—as he has in the past—that he plans to do this. This time, he should follow through on it.
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. President Obama has continued this Bush-era approach to fighting terrorism. It is the wrong approach. Suspected terrorists 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 indefinite detention will not end until the war on terror is over.
There is a lot at stake in Obama’s second term. When he leaves office in four years, which of 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 become permanent parts of American foreign policy. Which course will Americans push Obama to follow?
Luke Hansen, S.J.
An associate editor of America, a Catholic weekly magazine in the United States. In 2010, he met with former Guantánamo prisoners in Bermuda, and more recently, he traveled to Guantánamo Bay, Cuba, to report on the war crimes trial for five detainees accused of plotting the terrorist attacks of 11 September 2001.
Photo: L. Hansen