by Shayana Kadidal, Senior Managing Attorney at the Center for Constitutional Rights
Recently we passed another sad milestone in the history of the Guantánamo prison: As of Sunday, January 31st, President Obama has kept Guantánamo open for longer than President Bush did.
The standard narrative for why this has come to pass states that the fault lies with Congress. In 2008, both Obama, his campaign opponent John McCain, and President Bush all stated that closing Guantánamo was in our net national security interest, as it would take away a powerful symbol of American militarism and injustice towards Muslims, and with it a powerful recruiting tool for our enemies. Accordingly, the new president signed an executive order on his second day in office, mandating closure of the prison within a year, and there seemed to be consensus between the parties that this would be a good thing. Yet within months, a Congress with both houses firmly under Democratic control passed restrictions on transfers out of Guantánamo. The initial ban was on transfers to the U.S. for criminal trials, and Congress slowly expanded it to place onerous restrictions on all releases -- to a detainee's home country, to a U.S. ally that had agreed to extend asylum, anywhere.
We hear a lot of blame directed at Congress from this White House's defenders, but remember: Obama came into office with the biggest majorities in Congress of any Democrat since LBJ. Yet the first transfer restriction passed the Senate by a vote of 90 to 6. The vote wasn't destined to be that one-sided from the beginning. When Mitch McConnell first made the absurd claim that bringing a few detainees to the mainland to be tried in regular criminal courts posed a threat to the homeland, Harry Reid responded exactly how one would have expected:
May 4, 2009:
McCONNELL: "The American people want to keep the terrorists at Guantánamo out of their neighborhoods and off of the battlefield."
May 5, 2009:
McCONNELL: "Will these trained terrorists be allowed to travel freely anywhere in the United States? What will their status be? Will they be allowed to stay here permanently?"
May 6, 2009:
REID: "Republicans need to get another talking point. ... I support Barack Obama. I support John McCain. They both think [Guantánamo] should be closed. I do, too."
What followed was two weeks of pointed silence from the White House. If you look at what the Democrats in the Senate were saying at the time, it's clear they were looking for protection from the White House, and when it wasn't forthcoming, they turned tail and ran from this issue. Here's Speaker Reid speaking to the press two weeks later:
May 19, 2009:
REID: I'm saying that the United States Senate, Democrats and Republicans, do not want terrorists to be released in the United States. That's very clear.
QUESTION: No one's talking about releasing them. We're talking about putting them in prison somewhere in the United States.
... would you be all right with them being transferred to an American prison?
REID: Not in the United States. ... I've been as clear as I can .... I think I've had about enough of this.
You don't get a 90-6 vote on any issue in modern America any other way but through collusion between the political parties. The White House knew the fix was in; it just didn't tell Congressional democrats. As we know now from Daniel Klaidman's reporting, the president's political advisors didn't think Guantánamo was an issue worth spending even a penny's worth of political capital on. As Rahm Emanuel told White House Counsel Greg Craig:
We are trying to bring in two 747s [the wars in Afghanistan and Iraq] at the same we are trying to reform our national health care system, and right in the middle you want to send up a flock of Canadian geese, which is Guantánamo, which could take down one of our 747s.
It's easy to imagine that Emanuel somehow poisoned Obama's mind on this "pain-in-the-ass distraction," a "clean up the last guy's mess issue," but the years after the little man's 2010 departure from the White House were no better. The president never made good on several threatened vetoes (in 2011, 2013, and 2014) of increasingly-harsh transfer bans as they made their way through Congress. He never utilized a provision, inserted into the 2012 version of the restrictions by Senator Carl Levin, that gave the president the ability to waive most of the restrictions if doing so were in the interest of national security. (Obviously, "waiving" restrictions placed by Congress would have added to the president's perceived responsibility for anything going wrong after a release -- but look, he is president. The buck does stop with him.) Most recently, after initially vetoing a large defense appropriations bill that contained the renewed transfer restrictions, the president signed a version with an unchanged transfer bar after Congress made spending cuts he sought.
Moreover, even if Obama had done the most he could have to fight the Congressional restrictions, there are several things he could do now to expedite closure of the prison without violating the ban. Most importantly, he could instruct the Justice Department to concede that release is appropriate in habeas corpus cases brought by the 34 detainees who are already cleared for transfer by unanimous consent of the intelligence agencies, the military, and the Justice and State Departments. The statutory transfer bans contain an exemption for releases to effectuate court orders. (At the same time, the president could increase the pressure on the Periodic Review Boards to hold hearings for the 47 men awaiting a clearance hearing; 85% of the men who've gotten hearings thus far have been cleared.)
Finally, the president could also defeat the ban on transfers by doing what Secretary of State Clinton suggested years ago: negotiating guilty pleas with some of the remaining detainees in federal court. Guilty pleas would present an opportunity for the courts to rule that the existing transfer restrictions were not intended by Congress to apply to such cases, allowing the hardest cases to be resolved by finally charging men who've been held for years without charge.
One thing that won't accomplish a meaningful closure of Guantánamo is moving detainees who haven't been released or charged into the U.S. for further indefinite detention without charge. Yet this has clearly been a part of the president's plan since the first executive order on closure he signed in January 2009, which contemplated such a move (in section 3 of the order); the latest formal closure plan submitted to Congress proposed the same. The fact that the president regards moving a bunch of uncharged men into a U.S. prison as "closing Guantánamo" is perhaps a sign of why he hasn't felt much urgency in applying any of the above measures to help move the remaining men out of their perpetual legal limbo.