On Tuesday, President Obama gave his first detailed response to the prison-wide hunger strike that has been raging at Guantánamo for twelve weeks, responding to a question posed at a news conference by CBS News correspondent Bill Plante, who 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 men 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 men’s 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 US government, and by the mainstream media.
Although 86 of the remaining prisoners were cleared for release from Guantánamo by an inter-agency task force that President 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. This disgraceful decision was followed by Congress imposing severe restrictions on the release of any prisoners, requiring that, if anyone is to be released, the Secretary of Defense must certify that they will be unable to engage in anti-American activities. This 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 on their resettlement in a third country.
On Tuesday, however, when confronted with his failures, President 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 counter-terrorism 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,” further criticizing “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 offences relating to terrorism, who are serving sentences in federal prisons on the US 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.”
This 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 President Bush. Instead, he stated, simply but incorrectly, “Congress determined that they would not let us close it.”
President 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, “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 — had their release ordered 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 fulfil 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 this point, writing to Tom Donilon, President 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.
This 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 tasked with 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 advisers who saw Guantánamo not as an abomination but, cynically, as a waste of political capital.
The best that can be said of President 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 President 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 who 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 US 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.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the “Close Guantánamo campaign”, and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, Joyce McCloy wrote:
2 words. Halliburton Profits.
It seems to me that everything the US does is based on what corporations want.
All but 30 of the Gitmo detainees have been cleared for release since 2010, right?
So prisoners have been released before, but if GITMO were emptied out, Haliburton would lose these enormous contracts.
86 cleared for release, Joyce, leaving 80 – not 30 – to be tried or indefinitely detained, according to the task force’s conclusions. You’re right, however, that certain contractors would lose out if Guantanamo closed – plus, I would add, there are dark forces within the US establishment who (a) want to keep open – and ideally add to the population of – a prison where people can be held indefinitely without charge or trial, and (b) don’t want one of the most appalling truths about Guantanamo to be exposed – that no more than 3 percent of the 779 men held had any involvement with international terrorism. At present just over 20 percent of the total number of people held are still held, so it’s still possible to pretend that it wasn’t one of the most embarrassing episodes in modern American history.
And all of this, of course, doesn’t even begin to deal with its use as an experimental torture facility under President Bush, for which one day, senior officials – the most senior officials (Bush, Cheney, Rumsfeld etc.) – must be held to account.
My friend Monique D’Hooghe posted a link to Eric Posner’s article for Slate, “President Obama Can Shut Guantanamo Whenever He Wants,” which is worth reading.
An interesting angle – though not necessarily one I agree with. I think there are, and have been different arguments about Guantanamo within the administration. Moving the prisoners to the US mainland, for example, was Obama’s aim back in 2009, which many of those calling for the closure of Guantanamo opposed and continue to oppose because they think it would replicate an indefinite detention program on US soil. Myself and others think, however, think that moving the prisoners to the US would have opened up Guantanamo’s deeply flawed rationale to new legal challenges. I think it still would.
Looking at this from the pov of the president, he could release detainees like Shaker Aamer and the conditionally cleared Yemenis, under his own authority as a permitted exception from the rules of Congress. But, if any of his released detainees end up as statistics on the Pentagon’s periodic report of detainees suspected of, or confirmed as, re-engaging in hostile acts since 2009, the blame will fall all the more squarely on him. So far his stats look much better than Bush’s pre-2009 stats, and he surely wants to keep it that way. Those reports always result in alarming headlines and give his opponents ammunition.
The president seems caught between being blamed for not keeping his promise to close Gtmo and indefinitely detaining prisoners, on the one hand, or being blamed for the potential actions of released prisoners on the other hand. He must have nightmares both about dying hunger strikers and a released detainee managing to commit some spectacular act of terrorism. He can shift some of the blame to Congress in the first nightmare, but he would be on the hook by himself in the second nightmare, and he would also receive a lot more blame by his opponents and the public.
The Congress has set him up so that he can release detainees but he will take all the blame for the consequences. If I were him, I would start by getting the Pentagon and/or the CIA (headed by his two recent appointees) to change the way they do that re-engagement list. For one thing, as you know, Andy, they stopped providing any data to back up their statistics making it much harder to challenge. For another thing, their definitions of suspected re-engagement and confirmed re-engagement are misleading unless you read the fine print. They both really mean suspected in most cases, just with different levels of reliability of information.
As far as I can see, the president’s problem is all about avoiding blame. Bush could release hundreds of detainees without being blamed. He was blamed for keeping too many. It’s the opposite for Obama. A President Romney would have been in a better political position to release detainees, if he was so inclined. So, if he’s going to release detainees he has to find ways of reducing or sharing the blame.
Maybe if Shaker Aamer promised not to sue the UK if he was set free, he would be released from Guantamano? That might be why he’s still locked up, as the UK fears having to pay him compensation?
What an excellent analysis, Diane. Thanks.
I did some research into the false recidivism story a while back. You’re reminding me that it needs revisiting, as it’s key to playing down fears that are being stoked by those who want to keep Guantanamo open.
Actually, Shaker was included in the negotiations with the former prisoners when it came to the compensation that was paid to them at the end of 2011, to bring to an end their damaging civil claim for damages. I wrote about it here:
It seems to me that the pending settlement with Shaker would make it less rather than more likely that he’d talk freely on his return.
Monique D’Hooghe wrote:
if you aren’t following andy’s writing yet, it is about time you did… his incredibly well researched in depth journalism is unfortunately a rare gem these days…. and if you can, donate a couple of bucks to the man…. research costs time and effort and does not get funded as needed (hence the main stream media are becoming the lame stream media)
Thanks, Monique. Your supportive words are very much appreciated!
Chante Wolf wrote:
Cheney, a very influential sociopath.
Yes indeed, Chante. And he took millions of Americans to the “dark side” with him.
Clark Sullivan wrote:
If he were really sincere, he could issue a Presidential pardon(s)
Afifah Kuddah wrote:
there’s an old adage…’he’s’ a liar!…how do you know?…’his’ lips move!
Kristin Higgins wrote:
The outside world has failed the people at Guantanamo–the courts have failed, Obama has failed, Congress has failed–the Guantanamo detainees have taken their lives in their own hands and they’re deciding their fate. And the effect has been dramatic. A situation and an issue that was off the pages is now on the front pages constantly.
Thanks, Clark, Afifah and Kristin. Good to hear from you all. Can’t see lawyers ever allowing pardons, Clark, as they won’t even admit any responsibility for wrongly detaining anyone. Kristin, that’s a great analysis of what’s happened. Now it needs to stay on the front pages until the procrastinating Obama starts releasing the 86 cleared prisoners.
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The continuing assasination of Habeas Corpus. To the politicians we say, “Macbeth hath murdered sleep”.
Yes, Paul, the President and Congress “hath murdered sleep.” Nicely put.
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