President Obama's first promise as president seems to have slipped his "to-do" list for the second term. When he first ran for the nation's highest office, he vowed to close the infamous Guantánamo Bay prison "to regain America's moral stature in the world." The prison is still cloaked in scandal today.
This past month hearings in a Guantánamo court revealed that detainee defendants' cells have been ransacked, meetings with attorneys secretly recorded, and that intelligence has been interfering with court proceedings. Yet the president's 2013 State of the Union speech last Tuesday failed to mention the notorious prison, almost signaling that he has written off the issue as a lost cause.
Unlike what some members of Congress would like you to think, the hundreds of detainees --some of them children -- were and are not de facto terrorists, or presumed guilty until proven otherwise. Since the prison's inception on January 11, 2002, 166 remain there today, and of those 86 have been cleared for release and 46 the government lacks evidence to prosecute. Most were rounded up under questionable circumstances.
Each one has his own story. Shaker Aamer was tortured and abused, held without charge or process. His youngest child, whom he has never seen, was born the day he arrived in Guantánamo. Eleven years later Shakir remains there although cleared for release by the Obama administration.
The U.S. taxpayer doesn't get much out of this either. Guantánamo, as "the most expensive prison on earth," has cost us hundreds of millions in dollars, and even more in diplomacy. The prison remains a glaring embarrassment -- a symbol of torture, abuse, and illegality. More importantly, it is an antithetical to our own principles, our basic sense of right and wrong, and moral standing.
So why has President Obama not done more? His use of executive orders was a disappointment. His first order to close Guantánamo was to transfer detainees to a supermax prison in the U.S., which some argue merely creates a "Gitmo North" instead of solving the real problem -- indefinite detention. His second executive order in effect institutionalized indefinite detention.
Now, Congress has made it almost impossible for President Obama to transfer detainees, building such provisions into defense authorization bills that they knew the president could never veto. The latest roadblock to closure was an amendment to the 2013 National Defense Authorization Act, preventing the administration from transferring detainees to the U.S. for one more year. In political inertia, Congress is reluctant to close a notorious institution it has sustained for years.
But that's no excuse for President Obama. He should now do what he should have done four years ago -- use the bully pulpit. As Richard Neustadt taught, "Presidential power is the power to persuade." The president should get tough on Congress, especially the Democratic Members thwarting him. Incomprehensibly, Senator Kelly Ayotte is getting away with statements like "The top-rate facility at Guantánamo allows for the secure and humane detention of foreign terrorist detainees" -- and her amendment to the 2013 NDAA was passed in a Democratic Senate.
If Congress won't get their act together, the president should go to the people. In the same way he did for health care, and now gun control, Obama should pressure Congress by rallying the public's sentiments on the issue. It is immoral for us as a nation to keep Guantánamo. Guantánamo is a symbol of torture and illegal detention. What happened there and what is still going on is out of step with our commitment to the Rule of Law. Let's close Guantánamo.
As he did during his recent State of the Union for other issues, the president needs to ask the American people why Congress continues to support Guantánamo. Why has Congress been larding defense authorization measures with insurmountable obstacles, preventing the release of people the Executive Branch believes can properly be released?
And let's not forget our third branch of government. In Boumediene v. Bush, the Supreme Court affirmed habeas rights for detainees, who can challenge the legality of their detention in the federal courts of the District of Columbia. However, the D.C. Circuit Court of Appeals has not released a single prisoner. Instead it has frequently reversed orders of the district court directing detainee release. It is unlikely that the Justices will accept review of more detainee habeas cases, so as a practical matter it will be for Congress and the president to end the black hole of indefinite detention.
As he began his presidency, Barack Obama inspired us with the following words: "There is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantánamo Bay ... because living our values doesn't make us weaker, it makes us safer and it makes us stronger." Let's hope he takes care of this unfinished business while he still can.