Obama vs. Congress: The Struggle to Close Guantánamo, and to Prevent the Military Detention of Terror Suspects

It’s a sign of how skewed America is today that assassinating the world’s most wanted terrorist (Osama bin Laden), assassinating an American citizen working in Yemen as an anti-American propagandist (Anwar al-Awlaki), and being involved in a number of wars — covert or otherwise — that involve the targeted killings of alleged terrorists and insurgents through attacks by remote-controlled drones has not transformed Barack Obama into a hero for supporters of America’s brutal, decade-long “war on terrorism.”

Despite all this, to many Republicans in Congress — and even members of his own party — Obama is still not tough enough on national security issues. Time and again, lawmakers have acted to tie his hands, inserting provisions into a defense bill last December and an omnibus spending bill in April that prevented the administration from moving any prisoner from Guantánamo to the US mainland for any reason, even to face a trial, that prevented the purchase, construction or modification of any prison on the US mainland to hold Guantánamo prisoners, and that also required the defense secretary to notify Congress before releasing a single prisoner from Guantánamo.

Not content with this, lawmakers are pushing for further restrictions on the President’s authority and the administration’s policies, and are pushing so far that, finally, senior officials have responded. The problems for the administration, as the Associated Press explained two weeks ago, are with two provisions in a defense bill passed by the House of Representatives in May, and another provision in a bill that emerged from the Senate Armed Services Committee in June.

Partly revisiting contentious but familiar territory, the House bill again prohibits the transfer of prisoners from Guantánamo to the US mainland, thereby preventing the administration from subjecting any of the prisoners to federal court trials. The result is that they can only be prosecuted at Guantánamo in trials by military commission, even though the administration believes that this unnecessarily restricts its options, given that it accepts the viability of both federal court trials and military commissions — although it should be noted, of course, that the administration must bear the blame for reintroducing the commissions in the first place.

The House bill also intrudes further than before on the President’s right to release prisoners from Guantánamo, preventing the release of any prisoner unless the defense secretary provides certifications to Congress, guaranteeing that no prisoners previously released to the intended country have taken up arms against the US, and also providing details about the country’s record when it comes to combating terrorism and the state of its prisons.

In addition, the provision in the bill produced by the Senate Armed Services Committee is the most obviously alarming, as it requires the government to hold all terror suspects in military custody who are either identified as a member of al-Qaeda or an alleged affiliate group, or who have planned or carried out an attack on the United States.

In arguing against the latter provision, the administration can point to success in the federal court trial of Umar Farouk Abdulmutallab, the Nigerian would-be plane bomber, who delivered a guilty plea in his federal court trial on October 12, and who was interrogated by the FBI and not held in military custody. In addition, of course, the military commission trials at Guantánamo are ongoing, with the arraignment of Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole, scheduled for November 9.

As a result, it was unsurprising that, on September 16, John Brennan, President Obama’s chief counterterrorism advisor, told a Harvard University audience that the safest and most constructive approach was “a case-by-case approach in prosecuting terrorist suspects.” Brennan said, “We have established a practical, flexible, results-driven approach that maximizes our intelligence collection and preserves our ability to prosecute dangerous individuals. Anything less — particularly a rigid, inflexible approach — would be disastrous.”

Picking up where John Brennan left off, Jeh Johnson, the Pentagon’s General Counsel, told an audience at the right-wing Heritage Foundation on Tuesday that, when it came to the proposals to hold terror suspects in military custody, although we “must use every tool at our disposal,” there was “a danger in over-militarizing our approach to al-Qaeda and its affiliates.”

In case there was any doubt about his meaning, he stated, explicitly, that there were no conditions “under which the Obama White House might use Guantánamo for future detention or prosecution of terror suspects beyond those were currently there — four already convicted of war crimes and six in the chute for death-penalty prosecutions,” as the Miami Herald described it. “It is the firm policy of this administration not to add to the Guantánamo population,” Johnson said. “The president pledged to close Guantánamo and we are committed to that goal.”

Jeh Johnson also chastised Congress for its impositions on the President’s ability to close Guantánamo. He told the audience that dozens of the 171 prisoners still held at Guantánamo — actually, 30 in total — were cleared for release by the President’s Guantánamo Review Task Force, and could be freed if the State Department could “secure safe resettlement agreements” and defense secretary Leon Panetta “signs a waiver” acceptable to Congress, as the Miami Herald put it. In Johnson’s words, however, that waiver is “onerous and near impossible to satisfy,” and, he added, “Not one Guantánamo detainee has been certified for transfer since this legal restriction has been imposed.”

Johnson did not mention that another 28 Yemenis were cleared for release by the Task Force — and another 30 were also approved for release if it was judged that the security situation improved — because it was President Obama himself who issued a moratorium on releasing any Yemenis in January 2010, after an uproar following the capture of Umar Farouk Abdulmutallab, and the revelation that he had been recruited in Yemen.

Even so, preventing Congressional obstruction is essential if any of the cleared prisoners are to be released from Guantánamo. Since Congress first stepped up its opposition to any releases under any circumstances, at the end of last year, only three prisoners have left Guantánamo — an Algerian who won his habeas corpus petition, and two others who left in coffins.

Holding so many men cleared for release as the 10th anniversary of Guantanamo approaches (in January 2012) is profoundly unfair, and resuming the release of prisoners is essential if the Obama administration is ever to fulfill the President’s pledge to close the prison. Just as essential, however, is preventing lawmakers from dictating how the administration should deal with terror suspects. Mandatory military custody is, to be blunt, a deranged idea, as eleven retired generals, admirals and former judge advocate generals have explained. Announcing their opposition to the proposed legislation, they stated that it “would transform our armed forces into judge, jury and jailor for foreign terrorist suspects,” adding, “The military’s mission is to prosecute wars, not terrorists.”

Ten years on from the 9/11 attacks, and five months after the death of Osama bin Laden, it ought to be incomprehensible that these kinds of proposals are not only being proposed, but are being championed by lawmakers. There is, in this, a degree of cynicism on the part of some lawmakers, but for others the motivation is fear — the same fear that was so successfully manipulated by the Bush administration, and that still needs to be challenged and defeated by those who realize that, in the end, rather than protecting us, fear eats away at our sense of justice, morality and freedom.

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, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “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, if you appreciate my work, feel free to make a donation.