Obama’s Failure to Close Guantánamo: Revisiting a Major Article in the New Yorker


"Inaugurate Justice, Close Guantanamo": a message from Witness Against Torture activists outside the White House on January 13, 2013, the 11th anniversary of the opening of the prison, just a week before President Obama's second term inauguration (Photo: Andy Worthington).With just over 100 days remaining for President Obama to fulfill his promise to close the prison at Guantánamo Bay that he inherited from George W. Bush, where men subjected to torture and other forms of abuse are still held without charge or trial, undermining the US’s belief that it is a nation that respects the rule of law, I continue to work to close the prison, through my writing here, and through the Close Guantánamo campaign that I established with the US attorney Tom Wilner in January 2012, on the 10th anniversary of the prison’s opening.

A specific initiative of the “Close Guantánamo” campaign is the Countdown to Close Guantánamo, in which, every 50 days, those who wish to see Guantánamo closed have been submitting photos of themselves with posters reminding President Obama how many days he has left. Please print off the latest poster, marking 100 days remaining for President Obama to fulfill his promise on October 11, take a photo of yourself with it, and send it to us to add your voice to those calling for the prison’s closure.

This January, as President Obama prepares to leave office after eight years as president, it will be 15 years since Guantánamo opened, unless he somehow manages to close it — by executive order, perhaps — in the brief period between the presidential election in November and the inauguration of the next president in January 2017. That seems unlikely, however, because Congress has, for years, imposed bans on spending any money to bring any prisoners to the US mainland for any reason, and overriding lawmakers will unleash a fury.

That said, the Democrats might have a majority in Congress after the election, and the time between them taking their place in Congress (at the start of January) and the inauguration on the 20th could be the perfect solution — although as so often with Guantánamo, it’s not worth holding one’s breath in the expectation that, finally, justice will be done and that bastion of offshore injustice will finally be shut down.

It may be just as likely that it will be left to the next president — preferably Hillary Clinton, who has often expressed a desire to see it closed, rather than Donald Trump, who, on Guantánamo as on everything to do with political realities, does not really have clear ideas on anything except how to relentlessly promote himself, but has made some very dangerous comments about keeping Guantánamo open, reinstating torture and imprisoning American Muslims accused of terrorism without charge or trial.

The closure scenarios being looked at a worked towards by the Obama administration were dealt with two months ago in a detailed look back on how and why President Obama has, to date, failed to close Guantánamo that was written by Connie Bruck, a staff writer at The New Yorker since 1989, and published in the New Yorker. I’m cross-posting it below, because it’s a good recap of what went wrong, in its many manifestations, and how, since 2013, President Obama has, to a large extent, taken back the initiative.

There is little that was new to me in the account — although there are some  important parts of the story that are given the emphasis they deserve, and that are not generally well-known. Bruck spoke to Maj. Gen. Michael Lehnert, Guantánamo’s first commander, who was aware that, as he put it, “[s]ome of these people had simply been turned over with essentially a made-up rap sheet.” Noting that prisoners often invented cover stories — studying in a madrassa, for example — he nevertheless conceded that “[s]ome of them had been, there is no doubt in my mind.” He also claimed that others were “fairly senior in the Taliban or Al Qaeda” (although analysts have suggested that no one above a middling position in either organization was held before the arrival of the “high-value detainees” from CIA “black sites” in September 2006), but proceeded to explain that “[t]hese types of things should have been sorted out in Afghanistan, with Article 5 hearings—the usual procedure followed under the Geneva Conventions to sort out ‘the sheep from the goats.’ That didn’t happen, largely because the decision was made that the Geneva Conventions did not apply in this conflict.”

The removal of Article 5 hearings is one of the great crimes of the detention system the Bush administration implemented after 9/11, and it is always helpful to have it referred to in accounts of Guantánamo.

Bruck also notes that Lehnert “pressed repeatedly for hearings, but the Defense Department turned him down.” He told her, “In retrospect, I should have continued to push. At that time, Guantánamo could have gone either way.”

Bruck also, I believe, correctly highlights how much opposition to the closure of Guantánamo has come from the Department of Defense, and touches on part of the story that has never been looked at adequately — the aggressive role played in keeping men at Guantánamo by the Justice Department’s Civil Division, which fought the men’s Supreme Court-approved habeas corpus petitions as though their lives depended on it. As Bruck explained:

Attorney General Eric Holder had strongly supported efforts to close Guantánamo. But litigators at the Justice Department had a different perspective. Many had been involved for years in Guantánamo cases, and they considered the Defense Department their client. “Defense was driving Justice extremely hard, arguing that they should fight every case on every possible ground, because they did not want to lose the lawful basis to continue detention,” a former State Department official who worked closely with Justice Department lawyers explained.

I also hadn’t realized how, in the early days, Rahm Emanuel, Obama’s chief of staff, had tried to help the president to close the prison, until he decided it was no longer significant electorally, and I also hadn’t realized that Rep. Frank Wolf, who noisily spoke out in Obama’s first year against bringing a handful of innocent prisoners, the Uighurs (Turkic Muslims historically oppressed by the Chinese government), to live in the US, did so only because he felt slighted by the administration.

Wolf, it turns out, was a supporter of the Uighurs against the Chinese government, but his outcry led to what was one of the most significant climbdowns by the president on Guantánamo, as he backed down on the plan to bring the Uighurs to live in northern Virginia, even though doing so would have shown the American people, first-hand, how everyone held at Guantánamo was not a terrorist. His climbdown also doomed the Uighurs to being scattered around the globe, and also emboldened supporters of Guantánamo in Congress to impose a ban on bringing any prisoner to the US mainland for any reason that has led to years of often protracted efforts to secure homes in third countries for those, like the Uighurs, who could not be safely repatriated.

There were also some omissions — only a passing mention, for example, of how Obama’s decision to back down, under pressure, from holding the 9/11 trial in New York, was also a disaster, as it made the discredited and dysfunctional military commissions the only venue for trial of those genuinely caused of terrorism, and the commissions, as anyone paying attention will have realized, do not constitute a functioning court capable of fairly prosecuting those accused of terrorism (a related mistake, also not mentioned, was the administration’s decision, in November 2009, to hold both federal court trials and military commissions, when only federal court trials should have been chosen).

However, for anyone wanting a reminder of the whole story, as we count down to the end of the Obama residency, this is a good read, and a reminder of why it remains imperative that Guantánamo be closed as soon as anyone in power can practically work out how to do so.

Why Obama has Failed to Close Guantánamo
By Connie Bruck, New Yorker, August 1, 2016

Congress is blamed for preventing the President from fulfilling his pledge. But that’s not the whole story.

At the Guantánamo military prison—a desolate place near the eastern tip of Cuba—detainees began a chant that grew louder as it spread: “Obama! Obama! Obama!” It was Election Night in November of 2008, and the returns had made it clear that Barack Obama had soundly defeated John McCain. The chant echoed from blocky concrete buildings arranged into camps, where “compliant” detainees watched television and took classes, and “non-compliant” ones passed their time in twelve-by-eight-foot cells. The sound of the chant stopped short of the top-secret Camp 7, where the C.I.A. held “high value” detainees, including five men charged with participating in the attacks of September 11, 2001. But at Camp Justice, which housed visiting defense lawyers and military prosecutors in facing rows of tin sheds, the lawyers formed a chain and mamboed through the prosecutors’ side, chanting their own refrain: “Hey, hey … goodbye!” The prosecutors evidently took offense: a shoving match broke out.

When Obama began his first Presidential campaign, in 2007, the idea of closing the prison facilities at Guantánamo seemed to be gathering political force. Both Hillary Clinton, Obama’s main opponent in the Democratic primaries, and McCain, the Republican nominee and a former prisoner of war in North Vietnam, endorsed it. But Obama spoke about the issue with particular passion. “In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values,” he said. Guantánamo has been the scene of dubious, lengthy detainments, force-feedings, sleep deprivation, stress positions, vicious beatings, and other forms of torture, and yet in 2005 Vice-President Dick Cheney dismissed accusations that the camp was, in the words of one Red Cross report, a place of “humiliating acts.” He said of the prisoners, “They’re living in the tropics. They’re well fed. They’ve got everything they could possibly want. There isn’t any other nation in the world that would treat people who were determined to kill Americans the way we’re treating these people.”

For Obama, closing Guantánamo was an essential break with the Bush-Cheney era. On January 22, 2009, his second day in office, he issued an executive order, directing that the prison be shut down within a year. When detainees got the news, they shouted to the guards, “Have you heard? We’re getting out of here!”

Guantánamo, which has held as many as seven hundred and seventy-nine prisoners, now houses just seventy-six [note: now just 61, after 15 men were freed in August]. But it remains open, at a cost of $445 million last year—an expensive reminder that the United States, contrary to the ideals of its judicial system, is willing to hold people captive, perhaps for life, without a trial. For Obama, it is also painful evidence of the difference between the campaign promises of a forty-six-year-old aspirant and the realities of governing in a bitterly polarized time. Last March, when he made an appearance in Cleveland, Ohio, a seventh grader asked what advice he would give himself if he could go back to the start of his Presidency. Obama said, “I think I would have closed Guantánamo on the first day.” But the politics had got tough, he said, and “the path of least resistance was just to leave it open.”

Obama may yet close Guantánamo before he leaves office, but his failure to do so in nearly eight years as President has drawn criticism from a vast number of people who otherwise support him: liberals, centrists, officials in his own Administration. Obama and his aides are keenly aware of the unfulfilled promise, and of the short time—six months—left to them. Susan Rice, the national-security adviser, has spoken of the urgency around closing the prison: “I can’t say with certainty that we’re one hundred per cent going to get there, but I can tell you we’re going to die trying.”

In recent months, Guantánamo has been swarmed by defense lawyers trying to clear cases. The rush is inspired partly by Obama’s concerns about his legacy and partly by political calculations, as the Presidential election approaches. Hillary Clinton, who will accept the Democratic nomination this week, in Philadelphia, has vacillated on Guantánamo. But as Secretary of State, Administration sources say, she was far more willing than Obama to take political risks to get it closed.

Donald Trump has vowed to keep the prison open, and to “load it up with some bad dudes.” According to a leaked memo obtained by CNN, those prisoners will include American isis supporters—which, critics say, will likely mean American Muslims, deprived of their constitutional rights. “I would bring back waterboarding, and I’d bring back a hell of a lot worse than waterboarding,” Trump has said, adding, in other appearances, “Don’t tell me it doesn’t work—torture works,” and “If it doesn’t work, they deserve it anyway, for what they’re doing to us.”

In public remarks, Obama has usually blamed Congress for his failure to close the prison. But months of reporting revealed a highly charged series of political maneuvers, involving nearly every part of the Administration. The attempt to close the prison has entailed tense negotiations with foreign officials, heated confrontations during meetings in the White House Situation Room, and, especially, a long-running fight with the Pentagon, which outplayed Obama for years. For those who worked to implement his policy, often without support, the frustrations were acute. “You need White House backing,” a senior Administration official told me. “If something went wrong, the risk was all ours. Gitmo was a potential career-ender.”


The Guantánamo detention center was built on a forty-five-square-mile U.S. naval base, situated on land that has been leased from Cuba since 1903. When the prison opened, in 2002, it seemed like a rogue intelligence agent’s dream—an offshore facility, free from U.S. laws, where foreign prisoners could be held without access to family or lawyers, and interrogated however their jailers saw fit. Prisoners were brought there after 9/11 to remove any threat they might pose and to provide intelligence, but there was little expectation that they would be criminally prosecuted, so scant attention was given to the kind of evidence-gathering that would be required in court.

Despite persistent rhetoric from figures like Defense Secretary Donald Rumsfeld, who described the detainees as “the worst of the worst,” some members of the Bush Administration felt ambivalent about Guantánamo. The overwhelming majority of detainees were not terrorist leaders but low-level foot soldiers, along with some men who were just unlucky. Many had been turned over to the American military by local warlords for a bounty of as much as twenty-five thousand dollars a head. A leaflet distributed by the U.S. in Afghanistan and Pakistan promised that anyone who handed in an “Arab terrorist” would receive “enough to feed your family for life.”

Major General Michael Lehnert, the first commanding officer of Guantánamo, quickly understood the complexities of the situation. “Some of these people had simply been turned over with essentially a made-up rap sheet,” Lehnert told me. “The problem we faced was that almost everybody that got there said they were innocent and they’d simply been studying in a madrassa,” an Islamic religious school. “Some of them had been, there is no doubt in my mind,” he said. “And others were fairly senior in the Taliban or Al Qaeda. These types of things should have been sorted out in Afghanistan, with Article 5 hearings—the usual procedure followed under the Geneva Conventions to sort out ‘the sheep from the goats.’ That didn’t happen, largely because the decision was made that the Geneva Conventions did not apply in this conflict.”

Lehnert pressed repeatedly for hearings, but the Defense Department turned him down. “In retrospect, I should have continued to push,” he said. “At that time, Guantánamo could have gone either way. We could have sorted them out, and moved those who should be moved.” When the detainees staged a hunger strike, in February, 2002, Lehnert sat outside their cells, trying to persuade them to eat. The next month, he left for a new posting. Major General Michael Dunlavey, who succeeded him, sent a memo to his commanders later that year requesting authorization to use harsher interrogation techniques.

John Bellinger, a legal adviser to the National Security Council and the State Department in the Bush Administration, thought that, even if some detainees were being held unfairly, the first media stories about the prison portrayed them too sympathetically, as “innocent shepherds.” He asked an interagency group to help him provide a rebuttal: a list of a dozen prisoners who were plainly dangerous. “They came up with nothing,” he said. “The C.I.A. said, ‘No. Classified.’ And D.O.D. said, ‘No. Defense classified.’ And the F.B.I. said, ‘Law-enforcement sensitive.’” In time, he became convinced that the prison should be closed.

“It was an albatross,” a senior Bush White House official told me recently. “We really wanted to get it closed—but we didn’t want a political firestorm. A large part of it was the Defense Department. They were against closing it then, and they still are.”

But Robert Gates, then the Secretary of Defense, wrote in his memoir, “Duty,” that he saw the mistreatment of detainees as “at odds with our traditions, culture, and history.” He has said repeatedly that he was in favor of closing the prison. When I mentioned this, the official said, “Right,” and winked. “No, he was not. He had to deal with the building, with all the career people. The resistance there goes through the building.”

The department had created Guantánamo and invested in it extravagantly. Many Defense officials viewed it as an asset too important to lose. Leon Panetta, the Secretary of Defense from 2011 to 2013, told me, “There was an attitude that, in war, if you’re capturing those involved, you need to have a place to secure them, or you’re not going to have the intelligence you need.”


By January, 2009, when Obama took office, the Bush Administration had transferred some five hundred and thirty-two detainees out of Guantánamo. Two hundred and forty-two remained.

Despite Obama’s sweeping campaign rhetoric, the first effort to close the prison was distinctly technocratic: he created interagency task forces to vet detainees and to study detention policy. The process began with little urgency, since he and his advisers believed that there was a bipartisan consensus on closing the prison. This measured approach turned out to be a miscalculation. Greg Craig, a former Obama White House counsel, told me recently, “Maybe it was a mistake to put together these task forces, to be so rational in the way we approached the topic. Maybe the President should have told the Secretary of Defense, ‘I want this closed in one year. You figure out how, but do it.’ ”

Obama’s officials began the task with abundant assurance. In January, Craig went to Capitol Hill to meet with Ike Skelton, the Democratic chairman of the House Armed Services Committee. According to a congressional staffer who attended the meeting, Craig spoke of the prison as a moral travesty and vowed that it would be closed by the end of the year. Skelton was incredulous. “How?” he asked. “Where are the detainees going to go?” Craig did not have an answer. (Craig disputes this account.) The staffer said that the plan was little more than a sketch: “It was so haphazard on specifics, and on strategy. I thought of it as Obama’s ‘Field of Dreams’ approach: ‘If I say it, they will come.’ ”

As Obama began trying to empty the prison, it became clear that few people with political power were invested in seeing the detainees moved. The first major effort involved seventeen Uighurs—Chinese Muslims, most of whom had travelled to Afghanistan in the nineties, fleeing persecution by the Communist government. After the U.S. invaded Afghanistan, the Uighurs were turned over to the military, in exchange for a bounty of five thousand dollars each.

When the Bush Administration took up their case, Bellinger, the legal adviser, thought that the Uighurs’ situation was a “tragedy.” But they could not be repatriated to China, where they would likely be tortured or executed. And, when he tried to persuade other countries to accept them, foreign officials wanted to know why they should take people whom the U.S. didn’t want—particularly when China was threatening economic retribution. Bellinger argued that some of the Uighurs should be resettled in the U.S. But, he said, “arrayed against us were Defense, Justice, the C.I.A., Homeland Security, and the Vice-President’s Office.”

The case made its way to U.S. District Court in Washington, D.C. As hearings began, the judge, Ricardo Urbina, wondered if he was “misunderstanding the situation,” as he recalled in an oral history sponsored by Columbia University. “When I reviewed the submissions, there was nothing that suggested anything dangerous about these people.” In October, 2008, Urbina ruled the detention unconstitutional and ordered the Uighurs released into the United States. Bellinger recalled, “That decision was such a shock to Justice, Defense, and Homeland Security. They filed an emergency appeal to reverse, saying, ‘These are dangerous people!’” The appeal succeeded, and the Uighurs remained in prison when Obama took office.

In April, 2009, Rahm Emanuel, Obama’s chief of staff, hosted a principals-committee meeting, assembling Cabinet secretaries and agency directors involved in national security. At this meeting, the group concluded that at least two of the Uighurs should be brought to northern Virginia, which had one of the country’s largest Uighur communities.

Frank Wolf, a Republican congressman from the area, was a fervent supporter of the Uighurs and a critic of China. But, as the White House worked on a plan, it failed to involve him; the information was leaked to him, one Friday afternoon, by a contact in the Administration. Wolf angrily refused to accept the detainees, describing them in a letter to Obama as “terrorists” who “would be released into neighborhoods.” Other Republicans joined him; even Harry Reid, the Senate Democratic leader, said, “We don’t want them.” Emanuel abandoned the idea of a transfer, and Obama did not force the issue.

As the Administration was planning to move the Uighurs, Congress was working on legislation that would temporarily prohibit bringing detainees to the United States. With the provisions gathering momentum, Craig recalled, he got a call from Senator Dianne Feinstein, a longtime proponent of closing Guantánamo, saying, “Do you guys care about all this stuff? Because no one’s here from the White House—no one’s pushing back.” By then, White House officials were consumed with other issues, particularly with lining up votes for the Affordable Care Act, Obama’s foremost domestic initiative. “Rahm’s job was to get the President’s agenda through,” a former high-ranking White House official told me. “He said, Why are we going to waste our political capital on detainees? No one is going to give you any credit for closing Guantánamo—and you’re willing to risk being the only Democratic President to solve the health-care problem?”

With Obama’s team focussed on other goals, the bill that forbade moving detainees to the U.S. passed with overwhelming bipartisan majorities. Elisa Massimino, the C.E.O. of the advocacy group Human Rights First, described the White House’s decision as the template for many others that followed: “It was Obama’s lack of nerve to do what was politically difficult that created space for all the mischief that Congress made.”


When Hillary Clinton was appointed Secretary of State, it was unclear how strong an ally she would be in the closing of Guantánamo. As a senator, she had at times seemed to waver in her views on how detainees should be treated. In July, 2006, she noted that American law permitted them to be held until the war on terrorism was over, even if they had been tried and acquitted. “I mean, we had Nazis in prison camps in our country for years,” she said. Then, reportedly after a series of tense meetings, she agreed to support legislation that would allow detainees to challenge their detention in court. She told the Daily News that she would endorse torture to gain information in a “ticking-time-bomb scenario” that put many lives at immediate risk, but she subsequently reversed herself, saying, “It cannot be American policy, period.” In 2007, she co-sponsored legislation that would allow detainees to be moved to a facility in the United States. A month later, she voted for an amendment intended to prevent just such a move.

But, after losing to Obama in the Presidential primary, Clinton saw the State Department as a place to establish herself as an effective leader. Her new staff members described Guantánamo as a painful liability. “Gitmo was a goddam weight around our neck,” Daniel Fried, who had worked under Bush as Assistant Secretary of State for European and Eurasian Affairs, told me. “It hurt everything we tried to do. I went to Germany to talk about Russia, I got a lecture on Gitmo. I’d talk about energy security, I got a Gitmo lecture. It cost us political capital.”

Soon after arriving at the State Department, Clinton asked Fried to take the newly created job of Special Envoy for Closure of Guantánamo. He would help lead the transfer process, in which State’s role was to find other countries willing to take detainees and then work with Defense and other agencies to make sure that the security arrangements were adequate. A seasoned, irrepressible diplomat, fond of quoting Napoleon, Fried saw the political risks involved. As he moved into his unprepossessing office, on the department’s sixth floor, Clinton told him, “Good luck—and I’m afraid we’re already in trouble!”

The congressional restriction on bringing detainees into the United States had already taken effect, so Fried had to look abroad. The Bush Administration had transferred detainees mostly to their home countries—Afghanistan, Pakistan, Yemen, Kuwait. Fried enlarged the focus to include “third countries,” for detainees who risked being tortured if they were sent home, or whose home countries were too unstable. In the first two years, he said, seventeen countries took detainees: from Ireland and Spain to Latvia, Cape Verde, and Palau.

The negotiations were often difficult. Moazzam Begg, a British Pakistani and a former Guantánamo prisoner who advocated for his peers, said that, if there were colonies on the moon, “I’m sure they’d send us there.” Leaked State Department cables show that most cases required both diplomatic pressure and financial bargaining. Bulgaria asked the U.S. to pay relocation expenses, and to dispense with visa requirements for Bulgarian tourists and businessmen. Yemen offered to build a rehabilitation center if the U.S. and its allies contributed eleven million dollars; the U.S. countered with half a million. Fried asked Germany to take nine detainees and was rejected repeatedly; finally, after Clinton stepped in, officials there consented to take two.

It was easier to send detainees to their home countries, where politicians could boast of having retrieved their citizens from an American prison. But these countries sometimes lacked the motivation to insure that former detainees didn’t strike back against the U.S. When the Bush Administration returned eight prisoners to Kuwait, all eight were quickly acquitted. One of them, Abdallah al-Ajmi, later drove a truck bomb onto an Iraqi Army base, killing thirteen Iraqi soldiers.

When Obama took office, there were four Kuwaitis in Guantánamo. For those prisoners, Ajmi’s attack was a devastating setback. In February, 2009, the U.S. Ambassador, Deborah Jones, met with Kuwait’s Minister of the Interior and, according to State Department cables, warned him that Kuwait had to “show its seriousness in changing and controlling the behaviors of extremists within its society.”

The minister responded, “You know better than I that we cannot deal with these people. If I take their passports, they will sue to get them back.” He added, “If they are rotten, they are rotten, and the best thing to do is get rid of them. You picked them up in Afghanistan; you should drop them off in Afghanistan, in the middle of the war zone.”

Two months later, Clinton travelled to Kuwait and was surprised to hear that the government was building a Rehabilitation Center for Radicals, where its four citizens could be detained. An analyst surmised in a State Department cable that the Kuwaitis had been “galvanized by … domestic pressure on the government to bring ‘their boys’ home.” By summer, the center, set in Kuwait City’s Central Prison, was completed. Physically, it was hardly an improvement on Guantánamo: a hall of grimy cells sat near a gallows, and a diorama in the lobby showed a hangman preparing to dispatch a prisoner. The center, modelled partly on similar institutions in Egypt and Saudi Arabia, would employ mental-health workers and a non-radical imam to correct “misguided thinking.” A former American official who visited one of the Saudi rehab centers described the basic message as: “You can hate the Americans—just don’t kill them.”

Fried told Kuwaiti officials that the rehab center was a promising step, but the real issue was monitoring detainees over the long term. In the fall of 2009, the first two Guantánamo detainees arrived at the center. A Kuwaiti court quickly decided that there was no basis on which to hold either of them, and they left the center. Jones was furious. Objecting to the Kuwaitis’ “cavalier” behavior, she warned that further transfers could be impossible if it appeared that “we were being ‘gamed’ by the government of Kuwait.” Fried had been negotiating transfers for Guantánamo’s two remaining Kuwaiti detainees—Fayez al-Kandari and Fawzi al-Odah—but now those negotiations were halted.

Under international laws of war, enemy fighters may be detained without trial until the end of hostilities. But, in the open-ended conflict against networks of terrorists, that could mean imprisoning people for life. For Obama and others in his Administration, this posed a moral quandary. Initially, some thought that the task force charged with vetting detainees could divide them into three categories: prosecute, transfer, or release. “It would be a significant step to create a situation where people would be held indefinitely, and there was a skepticism at first,” Matthew Olsen, the task-force director, said.

But, after reviewing detainee files for a few months, Olsen and others concluded that some detainees were “too dangerous to transfer, but not feasible for prosecution.” In a handful of cases, the problem was that evidence had been tainted by torture; in most, though, the evidence was simply too insubstantial. Ultimately, the task force added a fourth category: indefinite detention. In May, 2009, in a speech at the National Archives, Obama endorsed the idea. “We are going to exhaust every avenue that we have to prosecute those at Guantánamo who pose a danger to our country,” he said. “But, even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes but who nonetheless pose a threat to the security of the United States.”

The task force selected forty-eight men to be placed in indefinite detention. Among them were the Kuwaitis, Kandari and Odah. In a matter of weeks, they had gone from anticipating imminent transfer to being “forever prisoners.”


In 2009, detainees had two routes out of Guantánamo. The first was the transfers being negotiated by the Obama Administration. The other was the courts. The Bush Administration had fought for years to prevent detainees from gaining access to the civilian judicial system, but, in 2008, the Supreme Court ruled that Guantánamo prisoners had a constitutional right to challenge their detention. Detainees’ lawyers began filing habeas-corpus petitions for their clients in Federal District Court in Washington, D.C. Some Administration officials saw these cases as a way of fulfilling Obama’s promise to empty the prison.

Attorney General Eric Holder had strongly supported efforts to close Guantánamo. But litigators at the Justice Department had a different perspective. Many had been involved for years in Guantánamo cases, and they considered the Defense Department their client. “Defense was driving Justice extremely hard, arguing that they should fight every case on every possible ground, because they did not want to lose the lawful basis to continue detention,” a former State Department official who worked closely with Justice Department lawyers explained.

The Justice Department had a pronounced advantage in these hearings. The legal standard of proof was lower than in a criminal case, requiring a demonstration of guilt not “beyond a reasonable doubt” but by “a preponderance of evidence.” Nonetheless, until mid-2010, Federal District Court judges ruled against the government forty per cent of the time, rejecting Justice’s evidence as too flimsy.

One of the habeas petitioners was Fouad al-Rabiah, an aeronautical engineer for Kuwait Airways. Rabiah, a doughy, middle-aged father of four, didn’t much resemble the conventional image of a terrorist. Like many of the other detainees, he claimed that when he was arrested, in Afghanistan in 2001, he was on a charitable mission—but, unlike some others, he had routinely done aid work in impoverished countries. In September, 2002, a senior C.I.A. analyst had come to Guantánamo and interviewed two dozen prisoners, including Rabiah, at length. Using this sample, he wrote a classified report estimating that a third of Guantánamo detainees had no connection to terrorism. The analyst, who has since retired, told me that Rabiah “should have been arrested for stupidity,” for travelling to Afghanistan after 9/11, but he was not a jihadi.

The Defense Department, however, was convinced that Rabiah was an Al Qaeda fighter and leader. According to a leaked prison profile, many of the allegations against him came from another prisoner, Tariq al-Sawah, an explosives expert and an admitted Al Qaeda member who informed on many of his fellow-detainees. Informants were rewarded with perks: space to work on art projects and to plant vegetables; visits to a place called the Love Shack, where they could watch pornography; and as much food as they wanted. (When Sawah was transferred to Bosnia, last January, he weighed four hundred pounds.) The allegations against Rabiah claimed that he had gone to a dinner hosted by Osama bin Laden. In one version of the story, he presented bin Laden with a suitcase full of cash; in another, he worked his way around the table, soliciting other guests to donate.

Throughout dozens of interrogation sessions, Rabiah denied any ties to Al Qaeda. But then new interrogators came in, with more forceful techniques. In what was called the “frequent-flier program,” they moved him from cell to cell to prevent him from sleeping. They told him that he would be sent to places where he would be tortured and perhaps never found. In a court declaration, he recalled being told that he could go home only if he confirmed his guilt: “My interrogators told me no one leaves Guantánamo innocent.” In the end, he confessed to everything that was put to him, but his interrogators remained frustrated: he seemed unable to keep the stories consistent.

When Rabiah’s case reached Federal District Court in Washington, D.C., lawyers for the Justice Department argued that his confessions should be taken seriously. “The judge said, ‘Are you really sure this is the position the government wants to take?’” Rabiah’s attorney, David Cynamon, recalled. “ ‘Don’t you want to go back and check with your superiors?’ They came back the next day and said, ‘Yes.’” The judge, Colleen Kollar-Kotelly, wrote in her decision, “Al Rabiah was a 43-year-old who was overweight, suffered from health problems, and had no known history of terrorist activities.” Yet, she continued, “he confessed to travelling to Tora Bora and advising senior Al Qaeda leaders” while simultaneously “acting as a supply logistician and mediator of supply disputes that arose among various fighting factions.” The court, she added, “does not accept confessions that even the Government’s own interrogators did not believe.”

Rabiah’s victory was part of a long losing streak for the Justice Department. From 2008 to mid-2010, Federal District judges considered fifty-three Guantánamo habeas-corpus petitions and granted thirty-eight of them. Generally, when detainees won, the Defense Department pushed Justice to appeal the decisions. In Rabiah’s case, Justice lawyers wanted to appeal, according to two former officials in the department. But crucial evidence came from a detainee who had been tortured, and Obama had declared in a speech that such evidence would not be admissible. “The Justice lawyers’ attitude was, Well, it doesn’t matter what the President said in a speech,” one of the former officials recalled, adding that the lawyers dropped the case only after Holder ordered them to do so.

According to a former Administration lawyer, the White House could have conveyed to Justice a preference for how the habeas petitions should be handled, but “that idea wasn’t discussed seriously.” The majority of cases were appealed, and, once they reached the D.C. Circuit Court, which was dominated by conservative judges, they were all overturned. Those judges also established new evidentiary rules for lower courts to follow, which strongly favored the government.

The decisive case was that of Adnan Latif, a Yemeni who said he had come to Afghanistan to seek medical treatment for a head wound. When Latif was arrested, he was unarmed, and had his medical records with him. The intelligence reports on which the government built its case were often in shorthand and filled with abbreviations, and a District Court judge found them to be unreliable. But the Circuit Court overturned that decision, ruling that all government records in such Guantánamo cases should be presumed to be accurate. For the Justice Department litigators, it was a striking victory: the decision effectively shut off the habeas route out of Guantánamo. For the plaintiff, its significance was greater. Having been cleared for transfer by two Administrations and ordered released by a federal judge, Latif was still forbidden to leave Guantánamo. In desperation, he later committed suicide in his cell.


By the end of 2009, the effort to close Guantánamo was “like watching a slow-motion train wreck,” a former Obama Administration official said. In the fall, Holder had pushed to try the five 9/11 defendants in federal court in Manhattan, in what he called “the trial of the century.” But, after Rudolph Giuliani and other politicians attacked the plan as unmanageably expensive and dangerous, the White House abandoned it. On Christmas Day, an attempted suicide bombing on an airliner over Detroit reignited fears of terrorism. Because the bomber was linked to Yemen, Obama forbade the repatriation of Yemeni detainees, which kept eighty-six of them stuck in cells.

As Obama’s self-imposed deadline for closing Guantánamo passed, the Administration seemed increasingly at odds with itself. Clinton offered to use her contacts on Capitol Hill to help broker a deal with critical figures in the Senate and the House. “At that moment, before the ice hardened, you might have been able to work out some deal with Congress,” a senior Administration official told me. “Transfer the ones you can. Try others in federal court. Find some supermax prison for the ones you had to hold. There are all kinds of variants of a deal, and she was saying, ‘For God’s sake, cut some damn deal!’ The White House didn’t authorize her.”

That summer, the Defense Department made a bid to take over the process of trying detainees. Under the Bush Administration, accused terrorists could be prosecuted in military commissions, a parallel justice system with fewer defendant protections than civilian courts. When Obama took office, he halted these commissions. But, in August, 2010 [note; actually it was 2009], with a principals-committee meeting pending, Pentagon staffers indicated that Secretary of Defense Robert Gates would argue in favor of resuming them, holding trials for the 9/11 defendants and others. Although the commissions could be held anywhere, Gates wanted them at Guantánamo. A former Republican congressional staffer explained that the tribunals would reinforce the importance of the prison: “If you want Guantánamo open, you want to establish facts on the ground.”

Fried and other State Department officials sent Clinton a package of memos, arguing, one participant recalled, that “we should not set up an alternative justice system in an offshore prison.” But the night before the meeting Clinton was still uncertain whether to attend. The former Administration official recalled that her staff was wary: “Does she really want to be putting herself out there on this if she has no allies—except Holder—and nobody in the White House is going to put their back to the wheel?”

Clinton decided to go to the meeting. There, according to several attendees, she challenged Gates. The President had argued in a speech that closing Guantánamo would restore the rule of law, and Clinton said that relying on military tribunals would badly undercut that claim. Worse, holding tribunals at Guantánamo would mean giving up on closing the prison—in effect, throwing the President’s stated policy “in the trash bin.” She picked up her stack of briefing papers and let them fall on the table with a thud.

Clinton was standing up for the President—but she was also standing up to him. “In lots of meetings she had in other countries, people were saying, ‘I thought the President said you were going to close Guantánamo. How can it still be open?’” the former official said. “From her perspective, the answer was, Good question! She saw this as a completely self-inflicted wound. Her view was, Either you say you’re not going to do it, and realign your policy, or you finish the commitment you made. The President kept giving away ground, and she kept sending memos that said, It’s still possible to do this, but it’s harder than it was six months ago.”

In the 2010 midterm elections, the Republicans won control of the House, and many of them were determined to put a stop to Guantánamo transfers. They argued that almost every detainee was capable of taking revenge on the United States, even the ones who had no apparent history of violence. “Whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter,” the former Republican staffer said.

Around the same time, the director of National Intelligence released an unclassified summary of intelligence reports on recidivism among detainees. The report stated that 13.5 per cent of those who had been transferred were “confirmed” to have reengaged in terrorism. But the summary was only two pages long, and the authors’ methods of confirmation were obscure. For those detainees who were “suspected” of reengaging, the standard was “plausible but unverified or single-source reporting.” A former national-security official told me, “Someone can say, ‘I think so-and-so was on the phone, talking to Al Qaeda,’ and that’s enough.” Still, when the “confirmed” and “suspected” categories were combined, the number became politically potent: twenty-five per cent.

In late 2010, Congress was finalizing the military’s annual spending bill, the National Defense Authorization Act. Republican staffers on the House Armed Services Committee realized that there was an easy way to keep detainees from being transferred to the U.S., for prosecution or for detention: they could simply craft provisions that prohibited spending money on such moves. But stopping transfers to other countries required a more ingenious legislative effort. The staffers devised a provision that made the Secretary of Defense personally responsible for preventing recidivism. Before a detainee was transferred to a foreign country, the Secretary had to issue a certification to Congress, pledging that the country would carry out security measures stringent enough to “ensure that the individual cannot engage or reengage in any terrorist activity.”

Each year, the Armed Services committees and the Defense Department consult privately on provisions in the spending bill. “It’s like a black box,” a Senate staffer told me. “And all of a sudden they produce this legislation that is hundreds of pages long, and people are combing through it to figure out: What’s in this bill?” When the Guantánamo provisions were revealed, it was clear that they were “devastating,” the former Administration lawyer said. State Department officials were livid. Jeh Johnson, the general counsel for the Defense Department, reassured them that the certifications wouldn’t pose a serious impediment, one of them recalled. (Johnson denies this.) Soon afterward, though, Johnson advised Gates not to sign any certifications. Gates agreed, and the operation froze. “People in the State Department and the N.S.C. believed that Defense played a bait and switch,” the former White House official said.

Obama could have threatened to veto the spending bill unless the Guantánamo provisions were removed, but it also contained provisions that would repeal the military’s Don’t Ask, Don’t Tell policy. The bill passed, and, though Fried continued to negotiate transfers, Gates did not approve a single one. Neither did his successor, Panetta. “As Secretary, that provision required that I sign my life away,” he told me. For some at the Defense Department, the provision was a relief. “There was so much focus on closing Guantánamo—you risked your job if you weren’t on board,” a former senior Defense official told me. The new strictures, he said, gave “the ability to be openly in favor of transferring people but unable to do it, because of the law.”

During the next two and a half years, only eight detainees left Guantánamo: five were released by court order, and three died. In successive defense spending bills, the dilemma was posed again, with new details but the same conclusion: Guantánamo could wait. “Each year, the President signed a budget request that said, ‘Thou shalt not close Gitmo,’” the former Republican staffer told me, with evident satisfaction.

Before Clinton left the State Department, in February, 2013, she sent Obama a memo urging him to renew the process of closing Guantánamo, and making specific recommendations. Then she shut down the Guantánamo office and moved Fried to another position in the State Department. According to the former Administration official, she didn’t want Fried to languish in a futile job: “It was a handshake. It was also her way of saying, the State Department can’t close Guantánamo by itself, so if the White House wants it closed they have to prove their commitment.” In an unmistakably peremptory gesture, she shut the office without informing the White House.


As Obama began his second term, inmates at Guantánamo launched another hunger strike, the largest one since 2005. The strike began after guards conducted a sweep of detainees’ cells, removing “comfort items” and allegedly mishandling Korans, an offense in Islam. But the more important issue was the seemingly endless detention. Obama had not mentioned Guantánamo in his inaugural address or in his State of the Union speech, and the media had lost interest. In 2011, he had issued an executive order calling for review boards to assess every detainee consigned to indefinite detention, but two years had passed without a hearing. According to two government officials, the delay was due to concerns at the C.I.A. that the review process would prohibit evidence elicited by torture—thus conceding that torture had taken place.

Fawzi al-Odah, one of the Kuwaitis, was among the first to join the strike. “We wanted our voices to go out,” he told me recently. “We wanted the world to know about us.” At the start, he said, about ninety per cent of the detainees participated. But after several weeks the prison authorities began force-feeding the strikers. Each was strapped into a chair, and a large feeding tube was thrust up his nose, down his throat, and into his stomach, inducing a powerful urge to vomit. “I completed about four months,” Odah said, with a trace of pride. The strike had graphic effects—one detainee’s lawyer said that his client’s waist reminded him of his six-year-old child’s—and it provided advocates of closing the prison with leverage. Dianne Feinstein, the chairman of the Senate Intelligence Committee, visited Guantánamo to observe the force-feeding methods. In a letter to the Secretary of Defense, she pointed out that the World Medical Association had declared that “forcible feeding is never ethically acceptable.”

In May, 2013, as the strike continued, Obama gave a speech at the National Defense University, in which he made his most forthright statement on Guantánamo in years. “Gitmo has become a symbol around the world for an America that flouts the rule of law,” he said. “Our allies won’t coöperate with us if they think a terrorist will end up at Gitmo. During a time of budget cuts, we spend a hundred and fifty million dollars each year to imprison a hundred and sixty-six people, almost a million dollars per prisoner … There is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened.”

A protester in the audience interrupted. “Excuse me, President Obama,” she said. “You’re the Commander-in-Chief—” Obama persisted. “Imagine a future—ten years from now or twenty years from now—when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country,” he said. “Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. I’m willing to cut the young lady who interrupted me some slack, because it’s worth being passionate about. Is this who we are?”

For a moment, it was easy to remember the fervent speeches about Guantánamo he had given before he was elected. But advocates for the detainees weren’t mollified. “In that speech, he was asking, Is this who we are? And the answer is, If you leave it open, that is who we are,” the former Administration official said. “It’s as if he’s protesting against the government—that he runs!”


Clinton, in her departing memo, had urged Obama to appoint a White House official to be responsible for Guantánamo. Instead, he named two new Special Envoys for Guantánamo Closure, one at Defense and one at State. It was an arranged marriage, meant to encourage interagency harmony; if it worked, the White House would be spared the job of ordering Defense to approve transfers.

The State Department envoy, Cliff Sloan, flew to Guantánamo on his second day on the job, in July, 2013. There were three Uighur detainees remaining—the others had been transferred to Bermuda, Palau, Switzerland, and elsewhere—and Sloan was eager to meet them. “I vowed to myself, I am going to get these men out of Guantánamo,” he said. Like his colleagues, Sloan was convinced that this was a fresh start, with a determined President who didn’t have the burden of running for reëlection. There was also a new Secretary of Defense, Chuck Hagel, who in his previous job as a Republican senator had consistently called for the prison to be closed.

In August, two Algerians left Guantánamo—the first negotiated transfers in two and a half years. By December, Hagel had approved nine more, mostly for detainees who had been cleared for transfer long before. But in early 2014, with some thirty deals ready for final approval, he stopped the process. “The White House started putting immense pressure on me to sign off on detainees,” Hagel told me. “The President said, ‘I want this done—I want it done now.’ I said, ‘I think you’d be disappointed in me, Mr. President, if I just arbitrarily sign off, based on a political promise. I have a legal obligation to certify certain things to Congress.’”

Susan Rice, who had been appointed national-security adviser the previous summer, also urged Hagel to act. By this time, the language in the defense-budget authorization had been loosened slightly: the Secretary of Defense no longer had to certify that transferred detainees could not engage in terrorism, only that the risk had been substantially mitigated. In May, Rice sent Hagel a memo, lecturing him not to apply a “zero-risk standard,” and ordering him to submit an update on transfers every two weeks. In principals-committee meetings, with Rice presiding, other Cabinet members pointed out to Hagel that the detainees in question had already been approved by the task force, in 2009—with the unanimous agreement of the Joint Chiefs of Staff, the office of the director of National Intelligence, and the Departments of Defense, Justice, State, and Homeland Security. “That was true,” Hagel told me. “But the reality of the records in 2009, versus records coming forward to 2013 and 2014—the conduct of these individuals! Saying to the guards down there, ‘I will kill you and your family and every American I can find!’ These statements were all recorded. You can’t just dismiss those records.”

Guantánamo detainees are routinely taped, whether they are mouthing off angrily to guards or chatting with one another. An analyst who knows the Middle East well studied these records and told me that they should not all be taken seriously: “Someone would say, ‘So-and-so is a bastard.’ And then someone else would say, ‘Oh, may God burn the intestine of his grandmother who gave birth to his father who gave birth to him!’ And someone reading it says, ‘They are out to destroy me and my family and all of our lineage!’ I said, ‘This is just a curse. It’s hyperbole.’” One defense lawyer told me that after seeing transcripts of recordings he warned his client not to say anything that could be perceived as provocative.

These kinds of records give Defense a marked advantage in arguments about detainees. “The Pentagon has its own information pipeline, because it’s their jail,” the former State Department official said. “So if some Pentagon official has a negative view of a particular detainee he can easily build his case.” As Hagel delayed, some speculated that he was receiving bad information. Hagel disputed this, saying, “Not at all—I felt the information I was getting was right.” But, he went on, “is there a bias the military would have, being more rigid in releasing some of these guys who we know are damned dangerous, who have killed Americans, who have killed allies? Not many State Department people get killed—some do. Not many White House people get killed. It’s D.O.D. people that get killed.”


One detainee whom Hagel refused to transfer was Ahmed Ould Abdel Aziz, a Mauritanian who arrived at Guantánamo soon after the prison opened. Aziz persistently denied allegations that he was involved with Al Qaeda, and no charges were ever brought against him. In 2009, the task force approved him for transfer home. But, for years, as the political fight over detainees went on, he remained in his cell. Aziz told his lawyer, “It is like having a ticket but there is no airport. Drives me to craziness. Time has no border, no limits.”

In November, 2013, an interagency team travelled to Mauritania, where officials promised to insure that Aziz would not be a threat. “It seemed like we had a deal,” a State Department official told me. “But, from that point forward, we were stymied repeatedly by the Department of Defense.” For twenty months, Defense officials raised a shifting array of objections. Mauritania had suffered coups, and could again. It was in a bad neighborhood, and its borders might be porous. Aziz was an intractable terrorist, as demonstrated by recordings like the ones that Hagel had mentioned. “There were a few very caveated and generalized threats—like, if I’m tortured, I would want to kill you,” the State Department official acknowledged. “But they had been considered by the task force and dismissed as jailhouse chatter.”

At a principals-committee meeting in October, 2014, Susan Rice directed Hagel to decide on the transfer in two weeks. Instead, the following month, he announced his resignation, which was forced in part by his resistance to approving transfers. The State Department official recalled that the interagency committee pressed Paul Lewis, the Defense Department envoy, on the disposition of Aziz’s transfer package; Lewis consistently replied that it was “on the Secretary’s desk.” But when Hagel was asked about it, at a farewell press conference the following January, he said that he didn’t know of any packages on his desk. “After that, Paul Lewis admitted that he had lied to the interagency committee for four months,” the official said. (The Defense Department denies this.)

During Hagel’s last months in office, under increasing pressure, he had signed off on two dozen transfers. When his successor, Ashton Carter, took over, officials in the White House and the State Department expected him to quickly approve more. Instead, months went by, and almost no packages reached his desk. “It was unclear whether people had self-censored or he told people, ‘I don’t want that on my desk!’” the former national-security official told me. “He had a meeting with the President every week or two. It sounds silly, but if Carter can say, ‘It’s not on my desk,’ then it’s harder for the President to direct him to make a decision.”

By late spring, Obama’s talking points for these meetings had become sharper, emphasizing that Carter’s job was to review the packages, no matter where in the building they might have been. In June, six Guantánamo detainees were transferred, the first to leave during Carter’s term.

The next month, a principals-committee meeting was held. Before these meetings, the White House typically tells the agencies what subjects will be discussed, and members’ staffs outline their responses. But this time White House officials arranged to use an unusual method known as a “table-drop”—the release of a document that neither the principals nor their staffs have seen before. This one, from the National Security Council, dictated that the Defense Department must decide on transfers no more than thirty days after the conditions for them were finalized.

Midway through the meeting, Susan Rice nodded to an N.S.C. staffer, Daniel Rosenthal, signalling that he should start distributing copies of the timeline. According to several sources, Rosenthal, seated behind Carter, tried to hand him the stack of papers. Carter swatted at Rosenthal and said, “Get that paper out of my face!” As a neighbor at the table took the pages to pass them around, Carter stuck a finger in Rosenthal’s face and yelled, “Don’t you ever put a piece of paper in front of me during a meeting again!” (The Defense Department disputes this.)

In September, Carter began signing transfers with increasing alacrity. “He had sent a very strong demand signal to the building that he wanted the cases to be worked quickly, and he wanted solutions to be found in the interagency,” Eric Rosenbach, Carter’s chief of staff, told me. Aziz was finally sent home, thirteen years after he arrived in Guantánamo. The former State Department official said that, during the two-year struggle to get Aziz transferred, he once challenged a Defense colleague to explain the resistance. The colleague replied, “Well, one thing that would help is if he would start expressing appreciation for the United States.”

The reason was probably more straightforward. “Pentagon leadership and legal, combined with the task force down at Gitmo, were not prepared to sign off on the recidivism risk,” the former White House official said. “If there wasn’t any cost to them to keep these guys locked up, why would they send them back?”

Many congressional Republicans argue that Obama’s plans to close the prison will put Americans’ lives in danger. In March, the Defense envoy, Paul Lewis, volunteered at a congressional hearing, “Unfortunately, there have been Americans that have died because of Gitmo detainees.” He was referring to a dozen or so former prisoners who are said to have launched attacks against soldiers in Afghanistan, killing a half-dozen Americans. But these detainees were transferred under the Bush Administration, long before Obama vowed to shut down Guantánamo.

The former White House official contrasted the tortuous attempt to empty Guantánamo with the relatively swift process in military prisons in Iraq and Afghanistan, which have held thousands of detainees. “The U.S. was constantly releasing people and taking people in. So this notion that the people we happened to have in Guantánamo couldn’t be released has always been preposterous. How could it be true that the hundred most dangerous terrorists in the world happened to be captured between 2001 and 2005—and are these elderly, disconnected Al Qaeda terrorists?”

In January, General John Kelly, who had run Guantánamo for the previous four years, gave a press briefing to mark his retirement. While State Department officials were urging countries to accept detainees, Kelly had described them as “among the most hateful and violent men on the planet.” Now he said, “They’re all bad boys. We have dossiers on all of them. Some of them were more effective in being bad boys than others. I think we can all quibble on whether thirteen or twelve or eight years in detention is enough to have them paid for whatever they did, but they’re bad guys.” He mentioned that one had just left for Kuwait, and that more would be transferred in the coming month: “If they go back to the fight, we’ll probably kill them. So that’s a good thing.”


In February, Obama, flanked by Ashton Carter and Vice-President Joe Biden, appeared in the White House Roosevelt Room to take stock of Guantánamo. “I don’t want to pass this problem on to the next President—whoever it is,” he said. “If we don’t do what’s required now, I think future generations are going to look back and ask why we failed to act when the right course, the right side of history and our best American traditions, was clear.”

Clinton released a statement supporting his efforts. “Over the years, Guantánamo has inspired more terrorists than it has imprisoned,” she wrote. “Closing Guantánamo would be a sign of strength and resolve.” During the campaign, though, she has said little about Guantánamo, leaving the discussion mostly to the prison’s supporters. At the Republican National Convention, last week, Senator Ted Cruz raised the subject in a gleeful talking point: “President Obama is a man who does everything backward. He wants to close Guantánamo Bay and open up our borders. He exports jobs and imports terrorists.”

As people in the Administration scramble to empty the prison, and Guantánamo supporters in Congress do what they can to stop them, some describe their goal as the “single airplane” scenario: transfer enough detainees so that the remaining men can fit on one plane, and then fly them out, to a “supermax” facility in the U.S. Forty detainees have been transferred in the past year, and at least thirty more will likely be transferred in the coming months [note: currently 20 of the remaining 61 men are approved for release]. Lee Wolosky, the State Department’s new envoy for closing Guantánamo, credited the accelerated pace to the new timeline, and to “intensive diplomacy.” According to the former national-security official, Obama was personally involved in persuading the Saudis to take nine Yemeni detainees: “If foreign leaders were waffling, he was always willing to cajole them. He would be the closer.”

The former senior Defense official noted the effect of more decisive leadership, from both Obama and Carter. “Some people at Defense are completely opposed to the transfers,” he said. “But D.O.D. people take orders. There’s a foreign-policy benefit to each transfer, and there’s a legitimate question of how dangerous the person is. If the Commander-in-Chief makes that decision, you salute sharply and you do it.”

The review boards, run by the Defense Department, have held new hearings for forever prisoners and have cleared twenty-nine for transfer [note: now 33]. Some hearings have produced surprising admissions. In June, the board met with an Afghan named Abdul Sahir [aka Zahir], who had been accused of making weapons for Al Qaeda. During the proceedings, the Defense Department acknowledged that, after fourteen years, it now believed Sahir was “probably misidentified”; the actual suspect was a man named Abdul Bari.

In February, the Administration began considering a novel plan in which the detainees plead guilty by videoconference and serve their sentences in foreign countries. The Justice Department objected to this method, which judges might construe as coercive, but there is pending legislation that could make it possible to implement. The White House is also considering an option of transferring detainees to foreign countries for prosecution.

If Obama’s initiatives succeed, they will leave ten detainees in military commissions, including the five 9/11 defendants, and perhaps thirty prisoners who seem unlikely to win transfer from a review board—a group that the White House has referred to as the “irreducible minimum.” Obama could conceivably take executive action to order the detainees moved to the U.S., on the ground that congressional restrictions are unconstitutional. And, if the Democrats win enough congressional seats in November, there will be a brief window, between when they take office and when Obama steps down, in which they might be able to pass legislation that permits closure. “Ramming that through in seventeen days in January, before the President leaves office—that’s a possibility, if a highly unlikely one,” Adam Smith, a Democratic representative from Washington, said.

As the election approaches, Obama’s team has been circumspect about the details of its last efforts. Wolosky said only, “What we’re doing to make it happen is transfers.” The options for emptying the prison entirely are circumscribed, with executive action the only real alternative if legislation can’t be changed. Closing Guantánamo that way would represent a success, but a compromised one, in which a process that began with bipartisan ideals ended with political force. But perhaps Obama is finally free of the need to avoid political consequences. As someone who deals frequently with the White House told me, “After the election, I can see Obama saying, ‘O.K., where can we put them? I want domestic and overseas options. I want to shut the place down.’ Because, even if Hillary wins, he’d rather get it done himself.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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.

10 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s a cross-post – with my introduction – of a New Yorker article from two months ago asking why President Obama has failed to close Guantanamo, which is still relevant now, and provides a good summary of what has – and hasn’t – happened in the last seven years and nine months since Obama first took office promising to close the prison. If you missed this article first time round, I hope you find it useful, and that my introduction also shines some light on the sad history of this unacceptable prison that no one seems able to close.

  2. Andy Worthington says...

    Thanks to everyone liking and sharing this. Please feel free to join the Countdown to Close Guantanamo next Tuesday, Oct. 11. Print off a poster, take a photo with it and send it to us at info@closeguantanamo.org http://www.closeguantanamo.org/dyn/1461020246314/CloseGuantanamoCountdown100Days.pdf

  3. Jeff Kaye says...

    How sad that at this point there is barely mention of the fact of the supposed suicides at Guantanamo in this and other articles. The New Yorker article mentions the Latif death, while stressing the legal shenanigans surrounding it. For instance, there is the presumption by the Federal court that overturned Latif’s habeas decision that records by the government should have the presumption of accuracy.

    But what if… what if someone could prove that not only were government records inaccurate – and Andy has done a superb job of that over the years – but that government agencies were actively intervening to mislabel, hide, and destroy documentation of such crimes?

    I have found evidence of just that occurring both before and during the Obama administration, and precisely in the events surrounding the Pentagon’s own investigations into the deaths at Guantanamo. Indeed, based on FOIA documents I obtained, in nearly every death (including Latif) there was an attempt to misuse, evade, or enter false information into the Gitmo computer system that keeps track of every single thing concerning detainees at that facility.

    I highly recommend my viewers check out the new ebook I released that documents and describes all this and more. See “Cover-up at Guantanamo: The NCIS Investigation into the ‘Suicides’ of Mohammed Al Hanashi and Abdul Rahman Al Amri.” https://www.amazon.com/Cover-up-Guantanamo-Investigation-Suicides-Mohammed-ebook/dp/B01LWTOWRI

  4. Andy Worthington says...

    Thanks for the reminder, Jeff – and also for the plug for your important new book. You are right to point out how little mention there is of the deaths at Guantanamo these days. I think people are so generally bombarded with information – and so generally encouraged not to dwell on anything meaningful – that as a society we cannot grasp the enormity of the big issues in our lives: the environmental destruction we have wrought, which could end us all, the colossal refugee crisis, which our own warmongering governments have created, through the wars that we shouldn’t have been involved in – Afghanistan, Iraq, Libya, Syria – and the fallout from the 9/11 attacks, which not only shifted the focus to war and terrorism just when global protest was focused on the dangers of globalization and the international profiteers of the banking and corporate world, but also tore up all the rulebooks dealing with conduct in war: the disappearance of the Geneva Conventions (which hardly anyone ever discusses), the increasing use of drones as agents of extrajudicial assassination (even of US citizens) in countries with which we are not at war, and, of course, the US’s post-9/11 torture program, and indefinite detention without charge or trial, which continues at Guantanamo. And through our amnesia or our indifference, the many crimes that have taken place in Guantanamo’s history are either completely unremarked or have become forgotten.
    I commend you for not forgetting. I know you’ve been on this story for at least five years – see Were Two Prisoners Killed at Guantánamo in 2007 and 2009? from March 2012, in which I cross-posted your Truthout article, “Recently Released Autopsy Reports Heighten Guantánamo ‘Suicides’ Mystery.” Sadly, as Scott Horton discovered with his investigation of the three deaths in June 2006, “The Guantanamo ‘Suicides’” published in Harper’s Magazine, you can win awards for investigations into extremely dubious deaths at Guantanamo, but people will still generally cross the road on either side, eyes averted. I think Joe Hickman has also been treated the same way.

  5. Jeff Kaye says...

    Yes, Andy, we are truly overwhelmed by what Leonard Cohen has called “the blizzard of the world,” and Joseph Conrad more simply, “the horror.” So what is one to do? Most turn away. Others choose their cause and work with it. “We all have to serve somebody.”

  6. Andy Worthington says...

    You’re reminding me of “Gotta Serve Somebody” by Bob Dylan, Jeff: https://www.youtube.com/watch?v=frWP2TzpayM
    I also hadn’t heard that line by Leonard Cohen, but I see it’s from “The Future”: https://www.youtube.com/watch?v=DsdAnYLvGe4
    And I couldn’t help noting that “the Future” also has the following lines: “It’s lonely here / There’s no one left to torture”
    Anyway, as for “the blizzard” and “the horror,” we simply can’t afford to have people turning away. That’s what makes me feel, with increasing regularity, that we’re reliving the dying days of Rome – or any other civilisation that hubristically fell. Take your pick. Can we wake up before it’s too late?

  7. Tom says...

    As the latest hurricane hit Haiti, Cuba and soon the Bahamas, I heard that Guantanemo staff and dependents were evacuated. So who remained behind to guard the remaining prisoners?

  8. Andy Worthington says...

    My understanding, Tom, is that about 20% of the US personnel – 700 people – were evacuated, so there were plenty left to guard the 61 remaining prisoners.

  9. Tom says...

    Watching late night Hurricane Matthew coverage. Looks like it did pass thru Guantanemo Bay. Now, the Bahamas are next. Many of those islands still haven’t recovered from the last hurricane.

    As for US political interference to closing it, no chance of it happening this year. What about Obama signing an Executive Order? Even if he pardoned all 61 remaining prisoners, that would completely destroy his “legacy”. He’s far more concerned about that than doing the right thing. Question. How many innocent people are being held under Sec. 1021 of the NDAA? Would Trump or Hillary repeal this? No chance.

  10. Andy Worthington says...

    On the global environmental front, it does seem to me, anecdotally, that the weather is getting worse, Tom. As you say, many islands haven’t recovered for the last hurricane onslaught, and I see Florida is now bracing for a direct hit.
    As for Guantanamo, an executive order would never lead to any of the remaining prisoners being pardoned, as the US authorities are close to consensus that those who remain are the “irreducible minimum.” I think less than 40 men could/should be held by the time Obama leaves office, if he can sort out releasing the 20 men currently approved for release. With ten men currently facing or having faced trials, we can also presume that forthcoming PRB decisions (possibly) and further reviews (almost certainly) will chip away at the 31 others, but I don’t see that an executive order closing the prison and bringing them to the mainland – which is what any EO he issued would seek to do – would work in practise, though it is something he’s able to do. Congress would be in uproar, and wherever he chose to locate a prison – or prisons – on the mainland would also presumably make a huge fuss. As Commander in Chief, he ought to be able to make it a military operation, involving moving the men to military brigs on the US mainland, but as I think has been made clear repeatedly, some senior figures in the DoD want Guantanamo to say open, so I expect he would meet resistance on that plan too.
    So, his legacy tarnished with the promise he couldn’t keep, it’s over to the next president, who, I think, will need a majority in Congress, a firm plan and steely resolve to get the job done. At some point, the cost of keeping Guantanamo open ought to become significant, but, that said, if the men remain at Guantanamo with further PRB reviews chipping away at the numbers, and with, perhaps, some other men put forward for trials, we end up with the awful truth about the whole Guantanamo/”war on terror” operation – that, after all that horror and lawlessness, only around ten men will face trials (less than 20 throughout Guantanamo’s long and pointless history, with, of course, four of six convictions to date that have led to men being released having been overturned on appeal), and less than 30 others will continue to be held in some sort of inadequate parallel version of the Geneva Conventions.
    For me the potential move to the US mainland remains significant, because these men would be able to launch new legal challenges, which I think is essential. After all is said and done, the 2001 Authorization for Use of Military Force is a very poor reason for depriving men of their liberty forever without charge or trial.

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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