Five things to know about Obama and Guantanamo

Maclean's ^ | May 1, 2013 | Luiza Ch. Savage


Obama said at a press conference on Tuesday that he is recommitting to his failed promise to close the U.S. prison at Guantanamo. There has been much confusion over who is responsible for his failure to do so — the president or Congress? The Pentagon has asked for $200 million to build permanent structures to replace deteriorating facilities there, suggesting that while the politicians debate, the once-temporary facility could be made permanent.

Here are five things to know about what is happening:

1. Detainees are on hunger strike
Obama renewed his call to close the prison amid a detainee hunger strike. The specific spark that set it off in February is disputed, but both detainee lawyers and U.S. military officials agree on its underlying cause: growing desperation and hopelessness among the detainees – many of whom have been held for over 11 years without trials, and over half of whom have been designated for transfer for more than three years – that they will never be allowed to go home.
2. Most can never get trials
The most difficult problem is what to do with those detainees who are deemed to dangerous to release but not feasible to prosecute. It is not possible to give the vast majority of the detainees trials. They are being held essentially as Prisoners of War because the government believes they were simply part of al-Qaeda or the Taliban and the U.S. continues to be at war with those organizations. But most of them are not linked to any specific terrorist attack – i.e. a crime for which they could be prosecuted. Moreover, for a variety of reasons, vaguer charges like providing material support for terrorism do not apply to most of them.
3. Some detainees were designated for release in 2009 but are still there
Most of the focus right now is on 86 of the 166 Guantanamo prisoners. This is the group that has been designated for transfer to other countries if certain security conditions can be met. They are not “cleared” – unlike some other former Guantanamo prisoners, they did not win a court order finding that they were not part of al-Qaeda or the Taliban at all and so must be released. Rather, a group of U.S. government national security agencies unanimously found in 2009 that they were low level enough that they could potentially transferred away if the receiving country could provide credible security assurances that it would keep an eye on them and prevent them from “returning to terrorism.” The outward trickle of this group stopped after January 2011 when Congress restricted transfers to countries with troubled security.
4. Obama’s plan would bring them to the U.S. for more indefinite detention without trial
Defenders of the Obama administration blame Congress for the failure to shut down Guantanamo because Congress blocked the president’s plan. But Obama’s plan for emptying the prison was not to release all the detainees who could not receive trials. Instead, he wanted to bring all the remaining detainees to a “Supermax” prison inside the U.S., where they would continue to be held indefinitely without trial as wartime detainees. Congress forbid the transfer of any more detainees onto U.S. soil. But even if Obama persuaded them to lift that restriction, the underlying issues of perpetual confinement without trial that are driving the current hunger strike would still persist.
5. Obama has been sitting on his hands
Obama could have been doing more to winnow the population at Guantanamo than he has been. Although Congress essentially halted all transfers of low-level detainees to countries with troubled security throughout 2011, since January 2012 lawmakers gave the Pentagon the power to waive most of the security restrictions on a case-by-case basis and transfer detainees anyway. The Obama administration has not used that authority. Obama himself banned any further repatriations to Yemen – where 56 of the 86 low-level detainees designated for transfer are from – even before Congress imposed its restrictions. Earlier this year, the administration reassigned and did not replace, the high level diplomat whose job had been to negotiate detainee transfers. Essentially the administration has had a stated policy that it wants to close Guantanamo but has for some time not been doing anything to implement that policy. Yesterday, Obama said he would “review” what could be done administratively and try again to persuade Congress to facilitate closing the prison.
Below are the president’s remarks:
Q: Mr. President, as you’re probably aware, there’s a growing hunger strike on Guantanamo Bay among prisoners there. Is it any surprise really that they would prefer death rather than have no end in sight to their confinement?
THE PRESIDENT: Well, it is not a surprise to me that we've got problems in Guantanamo, which is why when I was campaigning in 2007 and 2008, and when I was elected in 2008, I said we need to close Guantanamo. I continue to believe that we've got to close Guantanamo.
Well, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.
Now, Congress determined that they would not let us close it — and despite the fact that there are a number of the folks who are currently in Guantanamo who the courts have said could be returned to their country of origin or potentially a third country.
I’m going to go back at this. I've asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively. And I’m going to reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people. And it’s not sustainable.
The notion that we’re going to continue to keep over a hundred individuals in a no-man’s land in perpetuity, even at a time when we've wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al Qaeda core, we've kept the pressure up on all these transnational terrorist networks, when we've transferred detention authority in Afghanistan — the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.
Now, it’s a hard case to make because I think for a lot of Americans the notion is out of sight, out of mind. And it’s easy to demagogue the issue. That’s what happened the first time this came up. I’m going to go back at it because I think it’s important.

Q: Meanwhile we continue to force-feed these folks...

THE PRESIDENT: I don’t want these individuals to die. Obviously, the Pentagon is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this? Why are we doing this? We've got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing has happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with rule of law, consistent with our traditions.
The individual who attempted to bomb Times Square — in prison, serving a life sentence. The individual who tried to bomb a plane in Detroit — in prison, serving a life sentence. A Somali who was part of Al-Shabaab, who we captured — in prison. So we can handle this.
And I understand that in the immediate aftermath of 9/11, with the traumas that had taken place, why, for a lot of Americans, the notion was somehow that we had to create a special facility like Guantanamo and we couldn't handle this in a normal, conventional fashion. I understand that reaction. But we’re now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists.
And this is a lingering problem that is not going to get better. It’s going to get worse. It’s going to fester. And so I’m going to, as I said before, examine every option that we have administratively to try to deal with this issue, but ultimately we’re also going to need some help from Congress, and I’m going to ask some folks over there who care about fighting terrorism but also care about who we are as a people to step up and help me on it.