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Obama’s Guantanamo Challenge

As his final term concludes, the president must decide if he will try to override Congress in closing Gitmo.
Honor Bound to Defend Freedom
GUANTANAMO BAY, Cuba ñ A soldier with the Rhode Island Army National Guardís 115th Military Police Company stands watch in a guard tower at Camp Delta, Joint Task Force Guantanamo June 9, 2010. The Rhode Island Army National Guard unit is here on a year-long deployment providing security at the Joint Task Force Guantanamo detention facilities. The JTF Guantanamo conducts safe, humane, legal and transparent care and custody of detainees, including those convicted by military commission and those ordered released by a court. The JTF conducts intelligence collection, analysis and dissemination for the protection of detainees and personnel working in JTF Guantanamo facilities and in support of the War on Terror. JTF Guantanamo provides support to the Office of Military Commissions, to law enforcement and to war crimes investigations. The JTF conducts planning for and, on order, responds to Caribbean mass migration operations. (JTF Guantanamo photo by U.S. Air Force Tech. Sgt. Michael R. Holzworth) UNCLASSIFIED ñ Cleared for public release. For additional information contact JTF Guantanamo PAO 011-5399-3589; DSN 660-3589 www.jtfgtmo.southcom.mil

Outside, its buildings bear the signs of the blistering sun and the sea. Inside, cell walls and “feeding chairs” trace, however invisibly, the blood and bodily fluids of men. The Guantanamo Bay detention camp is more than a memento of one of America’s darkest periods of war and insecurity—it is a living, breathing testament to it.  

Year after year, President Obama has promised to close it. As he enters the last year of his final term, he may have to fight the entire Congress to get it done. It would appear he is ready: Instead of erasing GTMO from prepared remarks in Manila after the Paris attacks, he used the tragedy to stress why the notorious prison should be shuttered, calling it “an enormous recruitment tool for an organization like ISIL.”

“It’s how they rationalize and justify their sick perpetration of violence on its people,” he said on November 19. “We can keep the American people safe by shutting down that operation.”

Col. Morris Davis (Ret.), a former prosecutor at GTMO who resigned over the use of evidence gleaned through the torture of detainees there, agrees the president is on solid ground with the national security argument.

“If you need proof of whether Guantanamo helps ISIS promote its brand among those who might be susceptible to its influence, just look at the murder videos they’ve recorded and released,” Davis told TAC. “The murder victims are dressed in orange jump suits for a reason: To make them look like the Guantanamo detainees shown in the iconic Camp X-Ray pictures.”

“ISIS has been able to rationalize its brutality in the eyes of some by packaging it as a tit-for-tat for Guantanamo.”

It remains to be seen whether Obama has the political grit to follow through. He’s going to need it, and a whole lot of sass and strategery to get past Republican demagogues who suggest all Muslims, much less the ones languishing at Guantanamo Bay, are suspect. It could be the test of his presidency.

Of the 107 detainees remaining at the prison today, 48 are cleared for repatriation elsewhere. Around 50 men haven’t been charged with anything, but are deemed too dangerous for release. Just days before the Paris attacks, Obama announced the Pentagon would be releasing a plan for closing the prison and transferring those men to high security prisons in the U.S. The plan is supposed to include a list of facilities that are up to the task. The federal supermax prison in Colorado—ironically considered “the Alcatraz of the Rockies”—already holds 9/11 conspirator Zacarias Moussaui, and is a likely place for transfer.

Even before the attacks, this drew the usual hyperbole from critics. Aside from the fear of prisoners breaking out, there’s the relatively new bugaboo that other terrorists may try to break in.

“I will not sit idly by while the president uses political promises to imperil the people of Colorado by moving enemy combatants from Cuba, Guantanamo Bay, to my state of Colorado,” Republican Senator Cory Gardner told a Capitol Hill news conference after he and 40 sheriffs signed a letter telling Obama he was “dangerously naïve not to recognize that a civilian prison with an untold number of enemy combatant inmates, located in our state, would provide a very tempting target for anyone wishing to either free these detainees or simply wishing to make a political statement.”

Shortly thereafter, the Senate passed a version of the National Defense Authorization Act that would again cut funding from any attempts to transfer detainees to domestic soil, preventing Guantanamo’s closure. The House passed the measure with a huge majority, 370-58. The Senate vote was 91-3, with the only dissenters being Bernie Sanders (D-Vt.), Jeff Merkley (D-Ore.), and Ron Wyden (D-Ore). Wyden was the only one who cited GTMO as a reason for voting against the larger bill. Rand Paul, possibly the only other senator who might have stood against it, did not vote, and other Republican senators currently running for president were also absent.

Despite his objections, the president signed the bill Thursday. The administration has put out oblique signals, meanwhile, that it might be willing to use his executive authority to close GTMO instead. But constitutional questions aside, Obama also runs the risk of bypassing Congress while it has the ear of Americans on security.

“One of the Obama Administration’s greatest failures has been to let the other side dictate the narrative on Guantanamo,” said Davis. “Just look at some of the nonsense you see on social media about Guantanamo detainees, which is driven in part by news networks and politicians who play on feelings, not facts.”

But timing is everything, and the administration’s announcement that it was releasing five Yemeni prisoners to the United Arab Emirates just a few days after the November attacks in Paris was probably unhelpful. The word came as authorities were uncovering a nest of jihadis living in Muslim enclaves in France and Belgium. While one event had absolutely nothing to do with the other—the Yemenis, held since 2002, were never charged with anything—the optics couldn’t have been worse for a White House that has often been criticized for its tone deafness during key national moments.

The backlash was immediate. “It is clearly evident that President Barack Obama and his administration care little about reality but will push ahead with their ideological agenda,” boomed Lt. Col. Allen B. West (ret.). A former member of Congress, West was once sanctioned for putting a gun to an Iraqi prisoner’s head and threatening to kill him, and is rivaled only by Pamela Geller in rank Islamic fear mongering.

“Here we are just days after a horrific Islamic terror attack in Paris and what is the Obama administration response? They release five Yemeni detainees from Guantanamo Bay to the United Arab Emirates. I suppose it’s fair enough—seems the bad guys lost eight in Paris so it’s proper that we refill their ranks,” West charged.

“The shutdown in Guantanamo brings in the worst of the worst. I saw Khalid Sheikh Mohammad down there. Evil incarnate. Mastermind of 9/11. I don’t want him in the United States of America and I don’t think most Americans do,” said Rep. Mike McCaul, head of the House Homeland Security Committee, three days after the Paris attacks.

There is no indication that Khalid Sheikh Mohammad or his four accomplices in the 9/11 attacks—currently on trial (after a decade of fits and starts) at the Court of Military Commissions at GTMO—will be going anywhere. In fact, the trial will continue there even if the prison itself is closed down to everyone else. Congress successfully blocked the transfer of the proceedings to civilian courts three years ago.

One of the few Republicans behind closure, Senator John McCain, has not been able to get beyond his obvious dislike of the president to fully assist him in this one endeavor. His willingness to assist in the transfer of prisoners to the U.S. has been tepid at best. More recently, he openly lambasted the president when it was suggested that an executive order might be in the offing. “He lies when he says that he really wants to close Guantanamo with the cooperation of Congress, because he’s never sent over a plan,” said McCain, who voted for the NDAA with the majority of his party.

Lost in the tussle is the argument of why GTMO should be closed in the first place and immediately, said Davis. “I understand that when he took office the economic freefall and health care reform were higher priorities, but in the process it’s led to a public that is almost entirely uninformed [about GTMO],” he explained.

From the early days of Camp X-Ray, as the first Guantanamo prison was known, there have been numerous investigations, leaked reports, and personal accounts that should have sparked outrage. But the White House has made very little of the brutal interrogations, psychological abuse, suicides and attempted suicides, hunger strikes and twisted jurisprudence that have occurred there to make his case for closing it.

Just consider the financial burden, said Davis. According to the Defense Department, in 2014 the government spent nearly $400 million—more than $3 million per detainee—to maintain GTMO.  Millions more are being spent today to upgrade the court facilities for “the long term.”

Is an executive order the only way to stop this mess?

“I’d like to see (Obama) issue an executive order to close it and then let the courts decide who’s right,” said Davis. “President Bush didn’t go to Congress to get their approval to open the detention camp at Guantanamo, so why does President Obama have to get their blessing to close it?”

Some conservative constitutional lawyers are warning against such a move—even those who loathe everything GTMO stands for. “No, I don’t think he as President has the authority to unilaterally overrule Congress and act in violation of prohibitions on moving Guantanamo prisoners into the U.S. which Congress may put into a veto-proof National Defense Authorization Act,” said Todd Pierce, who as a former Army defense attorney at the prison, strongly believes it should be closed. He warns that the troubles wouldn’t end with the transfer of prisoners to the U.S. “‘Indefinite detention’ with no foreseeable release is a form of torture in itself,” he told TAC.

As always, the administration has been giving out mixed signals. Former White House counsel Greg Craig recently co-authored an op-ed asserting that “the president has exclusive authority to determine the facilities in which military detainees are held. Obama has the authority to move forward. He should use it.” But when asked by the House Judiciary Committee about the op-ed, Attorney General Loretta Lynch testified that the administration has not asked the justice department for a legal opinion on the matter, and that it “would follow the law of the land” in enforcing restrictions on prisoner transfer imposed by Congress.

So either one hand isn’t talking to the other, or Craig’s op-ed was a trial balloon intended to see which way the wind is blowing. Shortly after Lynch’s rebuke, the breeze turned brittle and sour as the streets of Paris ran with blood. If closing GTMO was a difficult challenge before, it is a somewhat of a gauntlet of fire now. The terrorist attacks in Paris will make the effort to close Guantanamo much more difficult, although the two aren’t related,” said Davis.

After Obama signed the NDAA into law, however, he also issued a signing statement making clear the tussle wasn’t over:

As I have said repeatedly, the executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy.

Obama is right to stand his ground on GTMO, but it will take more than a constitutional parley—he will have to convince the American people. “You have to give the credit where credit is due, and the other side has run a very effective misinformation campaign,” Davis added, “which I think at some point in the future, history will look back upon as a black mark.”

Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter and TAC contributing editor. Follow her on Twitter.



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