Is President Obama Planning an Executive Order for the Closure of Guantánamo?

15.10.14

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last Thursday, out of the blue, Carol E. Lee and Jess Bravin of the Wall Street Journal reported that senior Obama administration officials had told them that the White House was drafting options that would allow President Obama to close the “war on terror” prison established by President Bush at Guantánamo Bay, Cuba, through the use of an executive order.

Such an order would bypass lawmakers in Congress, who have imposed a ban on bringing prisoners to the US mainland since 2010, in response to President Obama’s proposal to transfer prisoners from Guantánamo to a maximum-security prison in Thomson, Illinois. Lawmakers have also passed legislation designed to make it difficult to release prisoners to other countries.

Reading on, it became apparent that this was only an option being considered. As the article explained, the officials said that President Obama “strongly prefers a legislative solution over going around Congress.” However, because, as one official said, the president is “unwavering in his commitment” to closing the prison, which he promised to close on his second day in office, he “wants to have all potential options available on an issue he sees as part of his legacy.”

That is good news for those of us who remain concerned that Guantánamo has not been closed, because every day the prison remains open is a profound shame for all Americans who believe in justice. We at “Close Guantánamo” have maintained, since President Obama first encountered problems with fulfilling his promise, that he must not waver, because failing to fulfil his promise would be a major black mark on his legacy — and all presidents, whatever they might say, care about how they are remembered.

The Wall Street Journal described executive actions as “a centerpiece” of the Obama administration’s policy agenda, “in areas including the minimum wage, anti-discrimination rules and, potentially, immigration,” although that seems to be something of an exaggeration. President Obama has, to date, issued 183 executive orders, while George W. Bush issued 291, Bill Clinton issued 364 and Ronald Reagan issued 381.

Nevertheless, it is fair to say, as the Wall Street Journal did, that an executive order on Guantánamo would be likely to “provoke a sharp reaction from lawmakers,” not only because of their ban on the transfer of prisoners to the US mainland, but also because some lawmakers are clearly motivated by a desire to keep Guantánamo open forever.

Steve Vladeck, a law professor at American University, said that unilateral action “would ignite a political firestorm, even if it’s the best resolution for the Guantánamo problem,” explaining that “Republicans are sure to oppose it, while Democrats could be split.”

The administration officials told the Wall Street Journal that, if Congress imposes further restrictions on Guantánamo after the mid-term elections in November, as is possible, President Obama only really has two options for closing the prison, either by vetoing the National Defense Authorization Act (NDAA), the annual bill establishing US military policy and funding, which includes the ban on bringing prisoners to the US mainland, or by signing the bill “while declaring restrictions on the transfer of Guantánamo prisoners an infringement of his powers as commander in chief, as he has done previously.”

The first option is unlikely, but the second is possible. As the Wall Street Journal explained, “Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.”

The article also explained that, in the hope of stifling dissent, the administration intends to reduce the prisoner population by “quickly transferring” prisoners cleared for release. Of the 149 men still held, over half — 79 in total — have been approved for release, 75 by the high-level, inter-agency Guantánamo Review Task Force that President Obama established in 2009 to review all the prisoners’ cases, and four this year through the deliberations of Periodic Review Boards, established to review the cases of the majority of the remaining 70 prisoners who were not approved for release by the task force.

58 of these men approved for release are Yemenis, whose release has been blocked because of fears, throughout the US establishment, about the security situation in Yemen — although, in theory, their release should be easier since President Obama dropped a personal ban on their release last May, which he had first imposed in January 2010, after a failed airline bomb plot that was hatched in Yemen.

The Wall Street Journal article coincided with an announcement, by the Estonian government, that one prisoner, who cannot be safely repatriated, will be given a new home in Estonia. US officials said that “additional transfers are in the works,” and it is to be hoped that six other men will be given new homes in Uruguay in the not too distant future, although that decision “is tied up in that country’s Oct. 26 presidential elections. The current president has agreed to accept the detainees, while his opponent has said he wouldn’t.”

Officials also said that they were hoping that releasing prisoners would reduce political opposition to the transfer of prisoners to the US mainland because it would highlight the cost of keeping Guantánamo open. The annual cost per prisoner is $2.7 million, compared to $78,000 per prisoner at a supermax prison on the mainland, but that cost will only increase as prisoners are released, because of the overall cost of maintaining the prison. A senior official said, “As the number [of prisoners] becomes smaller at Guantánamo, the case for domestic transfers … becomes that much stronger.”

Despite the hopes for the release of the 79 men approved for release, it is clear that Guantánamo cannot be closed until the 70 other prisoners are transferred to the US mainland. Last December, when lawmakers were prevailed upon to drop some of their restrictions on the release of prisoners, they refused to drop their ban on bringing prisoners to the US mainland for any reason, and this was clearly on President Obama’s mind in his State of the Union address this year, when he stated, bluntly, that “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantánamo Bay.”

The Wall Street Journal noted that officials said that President Obama “now expects to miss that deadline,” describing that as “a departure from earlier this summer when White House aides were still saying it was possible.” Complications have involved a cynical backlash by lawmakers and the right-wing media against the release, in May, of five Taliban prisoners in  a prisoner swap for Sgt. Bowe Bergdahl, the sole US prisoner of war in Afghanistan, and the current anti-Muslim sentiment fueled by the US decision to engage with ISIS militants in Iraq and Syria.

Speaking of transferring prisoners to the US mainland, officials said the US “has ample space in its prisons for several dozen high-security prisoners,” and explained that the administration “has reviewed several facilities that could house the remaining detainees, with the military brig at Charleston, S.C., considered the most likely.”

Following the publication of the Wall Street Journal article, the White House moved to distance itself from the reports by administration officials. As the Guardian described it, White House spokeswoman Caitlin Hayden said, “Since the president came into office in 2009 the administration has been examining all possible ways we could get to closure of the facility, but we are not drafting options to override the law. We are continuing to work on transfers [of prisoners] and calling on Congress to lift restrictions.”

The caution is understandable, as John Boehner, the Republican speaker of the House of Representatives, said in response to the article, “Even as Islamic jihadists are beheading Americans, the White House is so eager to bring these terrorists from Guantánamo Bay to the United States that it is examining ways to thwart Congress and unilaterally re-write the law.”

However, I do believe it is useful to consider that the executive order was mentioned to try to appeal not to fearmongers and cynical opportunists like Boehner, but to decent Americans — in Congress, in the media, and throughout the country in all walks of life — who recognize that something is profoundly rotten at Guantánamo, and that it must be brought to an end before President Obama leaves office, and this, of course, is something that, at “Close Guantánamo,” we wholeheartedly endorse.

What you can do now

To show your support of President Obama’s promise to close Guantánamo — and if you wish, to endorse an executive order as the only means of doing so, if Congress remains implacably opposed to the closure, on cynical grounds — call the White House on 202-456-1111 or 202-456-1414 or submit a comment online.

You can also call the Department of Defense and ask Defense Secretary Chuck Hagel to issue certifications, as required by Congress, for prisoners cleared for release who are still held: 703-571-3343.

You can also call Cliff Sloan, the envoy for the closure of Guantánamo at the State Department, who was appointed by President Obama last year, to ask him to do more to secure the release of men long cleared for release: 202-647-4000.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

13 Responses

  1. Andy Worthington says...

    On Facebook, Mary Shepard wrote:

    Perhaps Obama will make this part of his legacy. If so, I would regain some respect for him.

  2. Andy Worthington says...

    The intent is there, at least in parts of the administration, Mary. A few years ago one of Obama’s closest advisers told a colleague of mine, at a White House function, “There isn’t a day that goes by that we aren’t disappointed that we haven’t been able to close Guantanamo.”
    Now to some extent that was a huge cop-out, of course, because he’s the president, and can do things even when his hands appear to be tied. However, I do believe that Rahm Emanuel was a major stumbling block to progress when he was very close to Obama, and I believe that the president in general has been too timid with the Republicans, in part because he’s too suave and urbane to get into a proper fight with right-wing bullies.
    So we’ll see what happens. We’ll certainly be campaigning on Obama’s legacy for the last two years of his presidency, and although parts of the Democratic Party will no doubt be opposed to it, he should do whatever it takes to get it closed before he leaves the White House, as his legacy will be much worse if he doesn’t fulfill that long-unfulfilled promise.

  3. Andy Worthington says...

    Mary Shepard wrote:

    I agree totally, and I think Obama believed he would have more bipartisan support for closing gitmo than he actually got.

  4. Andy Worthington says...

    Mary Shepard wrote:

    I just feel strongly that if Obama doesn’t close Gitmo, it may be used again in the future for more “enemy combatants.”

  5. Andy Worthington says...

    Thanks, Mary. Yes, I think Obama might also have been surprised by how much opposition there was from his own party as well.
    And as for your second point, yes, it ‘s hugely important. Obama has been an evangelist for the use of drones, secret wars and even killing US citizens extra-judicially but he has persistently refused to send anyone new to Guantanamo – and that could certainly change in future if Guantanamo stays open.

  6. Andy Worthington says...

    Thanks to everyone liking and sharing this. It’s very much appreciated. I just read an idiotic comment by Pete Sattler, the writer/director of the new film “Camp X-Ray,” starring Kristen Stewart, that reminded me of how far we still have to go to get Guantanamo closed. “In my opinion, it’s largely apolitical,” Sattler said of his film. “There’s so much propaganda around Guantanamo Bay that I really didn’t want this film to have an agenda.” So much propaganda? It’s all one-sided, Mr. Sattler, and it has been since Guantanamo opened and senior Bush officials talked about it holding “the worst of the worst,” even though they actually had no idea who they were holding. And what do we hear generally when Guantanamo is mentioned? About the terrorists held there, even though only a few percent of the men held there have ever been accused of terrorism.
    Here’s where I read the quote, btw: http://www.sheknows.com/entertainment/articles/1051911/kristen-stewarts-camp-x-ray-is-confusing-so-read-this-before-watching

  7. Andy Worthington says...

    Brandon Neely wrote:

    The things I can tell you about this movie and Peter – they reached out to Terry and myself for help on this film while he was writing the script

  8. Andy Worthington says...

    Great to hear from you, Brandon. I would love to hear more, of course!

  9. Andy Worthington says...

    Here’s the New York Times review of “Camp X-Ray,” which portrays it as presenting a claustrophobic Guantanamo in which both the guards and the prisoners are trapped. It may be worth seeing: http://www.nytimes.com/2014/10/17/arts/camp-x-ray-a-dark-drama-about-guantanamo.html

  10. Andy Worthington says...

    Also worth looking at – how the right-wing media has started a witch hunt against Kristen Stewart: http://www.thedailybeast.com/articles/2014/10/16/the-right-wing-crusade-against-kstew-how-fear-factories-like-breitbart-and-fox-distort-news.html

  11. Andy Worthington says...

    And another review that suggests the film may not be worth seeing after all: http://www.avclub.com/review/kristen-stewart-mans-guantanamo-bay-politically-ev-210490

  12. mohammad hosein says...

    In The name of good
    I love you m.r obamaaaaaaaaaaaaaaa
    I love you m.r obamaaaaaaaaaaaaaaa
    I don’t know English very well
    I am a goal keeper
    Iran- Tabriz-Village kheljan
    Age: 1980
    mobill (0098 ) 9141182591
    mrazjooy@Gmail.com
    Tank you
    Mohammad hosein

  13. Andy Worthington says...

    Well, thank you, Mohammad. Very nice to hear from you!

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer (The State of London).
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