Canadian detainee Omar Khadr was sent to Guantánamo in 2002, aged 15, but was put on trial only in 2010. He was sentenced to eight years
Having travelled to Guantánamo Bay and witnessed the injustices perpetrated there, I wholeheartedly welcomed President Barack Obama’s promise to close the prison, made two days after he took office in 2009. But nearly three years later, that goal appears even further from his reach. Approximately 170 detainees remain at the facility, and in recent months their transfer out of Guantánamo has reached a virtual standstill.
Why? Many commentators have cited internal wrangling over priorities, strategic missteps and an unanticipated congressional blowback—characterising, more or less, an avoidable political tragedy. Yet if one steps back to examine the full picture of how Guantánamo came into being and why prisoners remain there, a common theme emerges. The continued existence of the prison is grounded in the intractable view that the United States is engaged in a global war without end. The US government is so wedded to this perception of “everywhere-and-endless war” that it is now on the verge of making permanent the very policies that led to Guantánamo’s creation.
This should alarm not only US citizens and civil liberties groups, but people around the world. A number of governments, including Britain’s, aided the United States in the wrongful detentions at Guantánamo, rendition to torture, cruel interrogations, and other abuses. For the sake of their own citizens’ security, foreign governments must weigh in now to ensure that past abuses are not repeated. International opinion matters to President Obama—and his administration needs to hear that the world not only wants Guantánamo closed, but also opposes any future regime of permanent, global war-based detention.
To understand why closing Guantánamo Bay has proven so difficult, one must consider the history of the prison. In 2001, in response to the 9/11 attacks, President George W Bush proclaimed that the United States was at war, not just in Afghanistan, but everywhere, and not just with al Qaeda but with innumerable other groups as well. In framing this as a “global war on terror,” the Bush administration claimed the authority to use extensive powers not available in peacetime—including the right to indefinitely imprison those deemed an enemy, wherever they might be. As we now know, this resulted in hundreds of men, many with no discernible ties to hostilities against the United States, being picked up all over the world, from Thailand to Zambia and Bosnia to Mauritania, declared “enemy combatants” and shipped off to Guantánamo Bay, which the Bush administration deemed a legal “black hole” removed from the oversight of US courts. The public was told that these men were the worst of the worst and could not be afforded the rights normally given to prisoners of war or terrorism suspects. They could not even be afforded the right not to be tortured. Many detainees were imprisoned for years, subjected to horrific abuses and denied fundamental due process rights. A handful were driven to suicide.
The US government bears primary responsibility for what happened at Guantánamo, but it did not, of course, act alone. Many allies helped with locating, abducting, transferring, and interrogating these prisoners; British secret services interrogated detainees before they were brought to Guantánamo and fed intelligence to interrogators who tortured their captives.
As the truth about the prison began to emerge, and court cases were filed, America’s allies began voicing their concern. By 2006, even Tony Blair, one of the firmest supporters of the war on terror, had recognised it would be best if Guantánamo were closed. There was also growing opposition to the prison within the United States across political party lines, too. By 2008 the two main presidential candidates, John McCain and Barack Obama, both committed to close the prison if elected. The shuttering of Guantánamo appeared to be a political certainty.
As President Obama signed the executive order, on 22nd January 2009, to close Guantánamo within the year, he was flanked by a cadre of high-ranking retired US admirals and generals, presumably to inoculate against any accusations that his decision was somehow “soft” on terror. The move was widely praised around the world, taken as a sign that the new administration would reclaim its standing in the international community, in part, by bringing US counterterrorism policies back within the rule of law. Yet a closer look at the text of the order reveals that the administration had failed to think through precisely how Guantánamo’s closure fitted within bigger picture decisions about counterterrorism policy.
The executive order left open too many loopholes, and explicitly kicked many of the more difficult questions down the road. One critical issue was whether the United States would continue to assert a global war-based authority to imprison people indefinitely without trial, and whether military commissions would be used instead of civilian courts. In the months that followed, it would become clear that these unresolved positions were at the core of what it really meant to close Guantánamo.
***
Shortly after taking office, Obama administration officials stopped using the term “global war on terror” in official statements, substituting instead terms such as “overseas contingency operations.” But a cosmetic substitute in rhetoric did not mark a decisive shift in thinking. As officials began to patch together the details of what a Guantánamo closure would look like, it became clear that neither the administration nor members of Congress were prepared to abandon the “war on terror” framework that had led to the prison’s creation.
In March 2009, in response to unlawfully held prisoners challenging their incarceration in the courts, the Obama administration adopted a position—shocking to many—only marginally different from that asserted by the Bush administration. (They dropped the term “enemy combatant” and relied solely on the Authorisation for Use of Military Force, a war resolution passed by the House of Representatives just days after the 9/11 attacks, rather than on presidential authority.) Thus far, US courts have largely accepted this position.
The administration dropped another bombshell in May 2009, announcing it would continue with military commission trials for some Guantánamo detainees. This prompted an outcry that the president seemed to be abandoning his campaign promise to pursue civilian trials in regular US courts. The administration sought and Congress passed some improvements to the Military Commissions Act in 2009, including eliminating the government’s ability to use statements obtained from its cruel treatment of defendants against them, but the rules continue to fall far short of fundamental fairness standards. Among other flaws, coerced statements made by other witnesses may be permitted, and the military is allowed to try terrorism crimes that the international community has never recognised as war crimes. (In practice, the commissions process also permits a far greater degree of censorship of a prisoner’s account of torture than a federal court would allow.)
A week after the announcement about military trials, President Obama made a landmark speech in front of the original copy of the US constitution, in which he fully outlined his administration’s war-based approach to the Guantánamo problem. He announced that, in addition to seeking to transfer and prosecute some Guantánamo prisoners, his administration would continue detaining—indefinitely and without trial—another category of prisoners who “remain at war with the United States,” which we now know includes people captured far from any battlefield, and who never engaged in hostilities against the United States.
With military commissions set to resume and a policy of indefinite detention now officially articulated, closing Guantánamo became, in large part, merely about shifting detainees from one prison to another and tinkering with the rules for a system of military trials. Meanwhile, congressional opposition to Obama’s plan to close Guantánamo mounted. At first, various members of Congress introduced dozens of bills to bar the transfer of Guantánamo prisoners to facilities inside the United States. Many were aimed at prohibiting transfers to specific states, driven by a “no enemy prison camp in my back yard” sentiment. Even Democratic legislators who didn’t oppose closing Guantánamo outright supported time-limited bans on funding to implement Obama’s closure policy, complaining that the president had failed to articulate a blueprint for how he intended to resolve not just the Guantánamo cases, but also the cases of potential future “war-on-terror” detainees.
Eventually, in June 2009, Congress passed a provision barring the transfer of Guantánamo detainees into the United States for any reason other than prosecution. Then in November 2009, when Eric Holder, the attorney general, was on the brink of announcing the plan to try Khalid Sheikh Mohammed and four co-defendants accused of conspiring in the 9/11 attacks in regular civilian courts, new proposals were introduced in Congress by Senator Lindsey Graham to force all Guantánamo cases set for trial into the military commissions.
At first, these proposals failed to gain the necessary congressional support. But when more than a year went by and the Obama administration appeared no closer to having either the political commitment or a logistical plan for bringing Guantánamo detainees to trial in the United States, Congress passed and the president signed, in January 2011, restrictions barring all transfers to the United States, even for prosecution.
At the same time, Congress also adopted draconian restrictions on the resettlement and repatriation of Guantánamo prisoners to foreign countries, even though the prisoners slated for transfer had been unanimously cleared by every military and intelligence agency in the US government. To justify such restrictions, members of Congress argued that the United States was still at war, and that Guantánamo detainees could not be allowed to return to the fight. They also cited the Obama administration’s own reports, which contained highly inflated recidivism statistics for former Guantánamo prisoners. As a result, transfers of Guantanamo prisoners to foreign countries effectively ceased.
The prospects for Guantánamo being closed any time soon appear especially bleak. This January, the president signed an executive order entrenching the legal principle that detainees could be held without charges or trials. In effect, centuries of American jurisprudence had been compromised by presidential fiat. Central tenets of US democracy, such as “beyond a reasonable doubt,” “the right to rebut the evidence against you,” and “the right to confront your accuser in a court of law” had evidently become quaint and obsolete principles for this constitutional law professor-turned-president. The order also laid out anaemic procedures for continuing to review the cases of Guantánamo prisoners remaining in US custody. Most disturbingly, even if President Obama’s new process were to determine that a prisoner posed no threat to the United States, congressional transfer restrictions would likely prevent his release.
Congress bears a great deal of blame for the failure to close Guantánamo, but there are several reasons why the president is also heavily responsible. First, he had the full authority to transfer detainees to the United States for prosecution for almost the first two years of his presidency. But rather than expediting its closure, his 2009 executive order contained a one year timeline; the delay allowed opponents to derail the plan.
Second, when the first complete ban on detainee transfers was enacted in January 2011, it applied only to Department of Defense funds. At that time, President Obama still had the option to transfer detainees to the US using Department of Justice funds, but he did not exercise that authority. He also could have vetoed the transfer provisions, but did not.
Third, he did not stand behind the attorney general’s decision, in November 2009, to prosecute the 9/11 suspects in federal criminal courts. Allowing local and national elected officials to undermine the authority of the attorney general to prosecute was a stunning capitulation in the perennial turf war between the executive and legislative branches. In short, Obama succumbed to political pressure and refused to fight crucial battles.
***
One might look at the nearly intractable political situation around closing Guantánamo and say that Congress has tied the administration’s hands in accomplishing its goal. But how did we get to this stalemate? President Bush didn’t ask the permission of Congress when he wanted to do the wrong thing and open Guantánamo. Why did Obama feel the need to get congressional blessing early in his tenure to do the right thing and close it?
As the first days of the Obama administration turned into months and years, the president cynically traded off the rule of law in favour of winning on other issues. Closing Guantánamo has perhaps only a relatively small domestic constituency of civil liberties activists behind it, compared to the administration’s other first-term promises, such as healthcare reform and ending the ban on lesbians and gay men serving openly in the military. In short, President Obama made a Faustian bargain that closing Guantánamo would cost too much political capital, while leaving it open would alienate few voters.
Whether that calculation was correct is irrelevant. The decision will be an unfortunate coda to the legacy of a historic presidency. As usual, and lamentably, principles did not trump politics.
Obama’s failure has implications far beyond the fate of the men who are trapped in prison. US policymakers continue to rely on war powers to detain prisoners with no connection to actual war, and this has an impact on forward-looking policies on detention. In the Senate, legislators have tacked on provisions to a defence funding bill that would authorise the indefinite military detention of civilians anywhere in the world, if they are suspected of having a relationship to terrorists. If this measure is passed, the US government could adopt a law by the end of the year that authorises the president to be the world’s self-appointed policeman for terrorism suspects, even if the suspect has never threatened or harmed US interests.
In theory, these provisions would allow the military detention of US citizens within the United States, although in reality this would be very controversial, as it was under the Bush administration. More likely would be the US government using such authority to once again pick up British, Australian and Spanish nationals travelling abroad, as it did when Guantánamo was first opened. Governments, like Britain’s, would again be in the difficult position of proving a negative: that their nationals aren’t warriors or terrorists and should be returned home.
What is perhaps most striking about the looming Senate proposals is how out of touch they are with the policies of US allies and the opinion of the US public. US allies, including Britain, have long ago distanced themselves from the “war on terror.” The US public has likewise demonstrated a growing impatience for war without end: even radically conservative politicians are challenging presidential military authority and proposing cuts to previously untouchable defence funds.
If US policymakers would listen to their allies and constituents, and let go of their everywhere-and-endless war, there would be no authority to continue to hold men at Guantánamo, and no need for expanded powers for war-based indefinite detention. If, on the other hand, the United States further entrenches its militarised approach to counterterrorism, by enacting provisions like those pending in the Senate, we will see past mistakes repeated, and new Guantánamos will emerge to hold the latest victims of the ill-conceived worldwide war on terror.
Having travelled to Guantánamo Bay and witnessed the injustices perpetrated there, I wholeheartedly welcomed President Barack Obama’s promise to close the prison, made two days after he took office in 2009. But nearly three years later, that goal appears even further from his reach. Approximately 170 detainees remain at the facility, and in recent months their transfer out of Guantánamo has reached a virtual standstill.
Why? Many commentators have cited internal wrangling over priorities, strategic missteps and an unanticipated congressional blowback—characterising, more or less, an avoidable political tragedy. Yet if one steps back to examine the full picture of how Guantánamo came into being and why prisoners remain there, a common theme emerges. The continued existence of the prison is grounded in the intractable view that the United States is engaged in a global war without end. The US government is so wedded to this perception of “everywhere-and-endless war” that it is now on the verge of making permanent the very policies that led to Guantánamo’s creation.
This should alarm not only US citizens and civil liberties groups, but people around the world. A number of governments, including Britain’s, aided the United States in the wrongful detentions at Guantánamo, rendition to torture, cruel interrogations, and other abuses. For the sake of their own citizens’ security, foreign governments must weigh in now to ensure that past abuses are not repeated. International opinion matters to President Obama—and his administration needs to hear that the world not only wants Guantánamo closed, but also opposes any future regime of permanent, global war-based detention.
To understand why closing Guantánamo Bay has proven so difficult, one must consider the history of the prison. In 2001, in response to the 9/11 attacks, President George W Bush proclaimed that the United States was at war, not just in Afghanistan, but everywhere, and not just with al Qaeda but with innumerable other groups as well. In framing this as a “global war on terror,” the Bush administration claimed the authority to use extensive powers not available in peacetime—including the right to indefinitely imprison those deemed an enemy, wherever they might be. As we now know, this resulted in hundreds of men, many with no discernible ties to hostilities against the United States, being picked up all over the world, from Thailand to Zambia and Bosnia to Mauritania, declared “enemy combatants” and shipped off to Guantánamo Bay, which the Bush administration deemed a legal “black hole” removed from the oversight of US courts. The public was told that these men were the worst of the worst and could not be afforded the rights normally given to prisoners of war or terrorism suspects. They could not even be afforded the right not to be tortured. Many detainees were imprisoned for years, subjected to horrific abuses and denied fundamental due process rights. A handful were driven to suicide.
The US government bears primary responsibility for what happened at Guantánamo, but it did not, of course, act alone. Many allies helped with locating, abducting, transferring, and interrogating these prisoners; British secret services interrogated detainees before they were brought to Guantánamo and fed intelligence to interrogators who tortured their captives.
As the truth about the prison began to emerge, and court cases were filed, America’s allies began voicing their concern. By 2006, even Tony Blair, one of the firmest supporters of the war on terror, had recognised it would be best if Guantánamo were closed. There was also growing opposition to the prison within the United States across political party lines, too. By 2008 the two main presidential candidates, John McCain and Barack Obama, both committed to close the prison if elected. The shuttering of Guantánamo appeared to be a political certainty.
As President Obama signed the executive order, on 22nd January 2009, to close Guantánamo within the year, he was flanked by a cadre of high-ranking retired US admirals and generals, presumably to inoculate against any accusations that his decision was somehow “soft” on terror. The move was widely praised around the world, taken as a sign that the new administration would reclaim its standing in the international community, in part, by bringing US counterterrorism policies back within the rule of law. Yet a closer look at the text of the order reveals that the administration had failed to think through precisely how Guantánamo’s closure fitted within bigger picture decisions about counterterrorism policy.
The executive order left open too many loopholes, and explicitly kicked many of the more difficult questions down the road. One critical issue was whether the United States would continue to assert a global war-based authority to imprison people indefinitely without trial, and whether military commissions would be used instead of civilian courts. In the months that followed, it would become clear that these unresolved positions were at the core of what it really meant to close Guantánamo.
***
Shortly after taking office, Obama administration officials stopped using the term “global war on terror” in official statements, substituting instead terms such as “overseas contingency operations.” But a cosmetic substitute in rhetoric did not mark a decisive shift in thinking. As officials began to patch together the details of what a Guantánamo closure would look like, it became clear that neither the administration nor members of Congress were prepared to abandon the “war on terror” framework that had led to the prison’s creation.
In March 2009, in response to unlawfully held prisoners challenging their incarceration in the courts, the Obama administration adopted a position—shocking to many—only marginally different from that asserted by the Bush administration. (They dropped the term “enemy combatant” and relied solely on the Authorisation for Use of Military Force, a war resolution passed by the House of Representatives just days after the 9/11 attacks, rather than on presidential authority.) Thus far, US courts have largely accepted this position.
The administration dropped another bombshell in May 2009, announcing it would continue with military commission trials for some Guantánamo detainees. This prompted an outcry that the president seemed to be abandoning his campaign promise to pursue civilian trials in regular US courts. The administration sought and Congress passed some improvements to the Military Commissions Act in 2009, including eliminating the government’s ability to use statements obtained from its cruel treatment of defendants against them, but the rules continue to fall far short of fundamental fairness standards. Among other flaws, coerced statements made by other witnesses may be permitted, and the military is allowed to try terrorism crimes that the international community has never recognised as war crimes. (In practice, the commissions process also permits a far greater degree of censorship of a prisoner’s account of torture than a federal court would allow.)
A week after the announcement about military trials, President Obama made a landmark speech in front of the original copy of the US constitution, in which he fully outlined his administration’s war-based approach to the Guantánamo problem. He announced that, in addition to seeking to transfer and prosecute some Guantánamo prisoners, his administration would continue detaining—indefinitely and without trial—another category of prisoners who “remain at war with the United States,” which we now know includes people captured far from any battlefield, and who never engaged in hostilities against the United States.
With military commissions set to resume and a policy of indefinite detention now officially articulated, closing Guantánamo became, in large part, merely about shifting detainees from one prison to another and tinkering with the rules for a system of military trials. Meanwhile, congressional opposition to Obama’s plan to close Guantánamo mounted. At first, various members of Congress introduced dozens of bills to bar the transfer of Guantánamo prisoners to facilities inside the United States. Many were aimed at prohibiting transfers to specific states, driven by a “no enemy prison camp in my back yard” sentiment. Even Democratic legislators who didn’t oppose closing Guantánamo outright supported time-limited bans on funding to implement Obama’s closure policy, complaining that the president had failed to articulate a blueprint for how he intended to resolve not just the Guantánamo cases, but also the cases of potential future “war-on-terror” detainees.
Eventually, in June 2009, Congress passed a provision barring the transfer of Guantánamo detainees into the United States for any reason other than prosecution. Then in November 2009, when Eric Holder, the attorney general, was on the brink of announcing the plan to try Khalid Sheikh Mohammed and four co-defendants accused of conspiring in the 9/11 attacks in regular civilian courts, new proposals were introduced in Congress by Senator Lindsey Graham to force all Guantánamo cases set for trial into the military commissions.
At first, these proposals failed to gain the necessary congressional support. But when more than a year went by and the Obama administration appeared no closer to having either the political commitment or a logistical plan for bringing Guantánamo detainees to trial in the United States, Congress passed and the president signed, in January 2011, restrictions barring all transfers to the United States, even for prosecution.
At the same time, Congress also adopted draconian restrictions on the resettlement and repatriation of Guantánamo prisoners to foreign countries, even though the prisoners slated for transfer had been unanimously cleared by every military and intelligence agency in the US government. To justify such restrictions, members of Congress argued that the United States was still at war, and that Guantánamo detainees could not be allowed to return to the fight. They also cited the Obama administration’s own reports, which contained highly inflated recidivism statistics for former Guantánamo prisoners. As a result, transfers of Guantanamo prisoners to foreign countries effectively ceased.
The prospects for Guantánamo being closed any time soon appear especially bleak. This January, the president signed an executive order entrenching the legal principle that detainees could be held without charges or trials. In effect, centuries of American jurisprudence had been compromised by presidential fiat. Central tenets of US democracy, such as “beyond a reasonable doubt,” “the right to rebut the evidence against you,” and “the right to confront your accuser in a court of law” had evidently become quaint and obsolete principles for this constitutional law professor-turned-president. The order also laid out anaemic procedures for continuing to review the cases of Guantánamo prisoners remaining in US custody. Most disturbingly, even if President Obama’s new process were to determine that a prisoner posed no threat to the United States, congressional transfer restrictions would likely prevent his release.
Congress bears a great deal of blame for the failure to close Guantánamo, but there are several reasons why the president is also heavily responsible. First, he had the full authority to transfer detainees to the United States for prosecution for almost the first two years of his presidency. But rather than expediting its closure, his 2009 executive order contained a one year timeline; the delay allowed opponents to derail the plan.
Second, when the first complete ban on detainee transfers was enacted in January 2011, it applied only to Department of Defense funds. At that time, President Obama still had the option to transfer detainees to the US using Department of Justice funds, but he did not exercise that authority. He also could have vetoed the transfer provisions, but did not.
Third, he did not stand behind the attorney general’s decision, in November 2009, to prosecute the 9/11 suspects in federal criminal courts. Allowing local and national elected officials to undermine the authority of the attorney general to prosecute was a stunning capitulation in the perennial turf war between the executive and legislative branches. In short, Obama succumbed to political pressure and refused to fight crucial battles.
***
One might look at the nearly intractable political situation around closing Guantánamo and say that Congress has tied the administration’s hands in accomplishing its goal. But how did we get to this stalemate? President Bush didn’t ask the permission of Congress when he wanted to do the wrong thing and open Guantánamo. Why did Obama feel the need to get congressional blessing early in his tenure to do the right thing and close it?
As the first days of the Obama administration turned into months and years, the president cynically traded off the rule of law in favour of winning on other issues. Closing Guantánamo has perhaps only a relatively small domestic constituency of civil liberties activists behind it, compared to the administration’s other first-term promises, such as healthcare reform and ending the ban on lesbians and gay men serving openly in the military. In short, President Obama made a Faustian bargain that closing Guantánamo would cost too much political capital, while leaving it open would alienate few voters.
Whether that calculation was correct is irrelevant. The decision will be an unfortunate coda to the legacy of a historic presidency. As usual, and lamentably, principles did not trump politics.
Obama’s failure has implications far beyond the fate of the men who are trapped in prison. US policymakers continue to rely on war powers to detain prisoners with no connection to actual war, and this has an impact on forward-looking policies on detention. In the Senate, legislators have tacked on provisions to a defence funding bill that would authorise the indefinite military detention of civilians anywhere in the world, if they are suspected of having a relationship to terrorists. If this measure is passed, the US government could adopt a law by the end of the year that authorises the president to be the world’s self-appointed policeman for terrorism suspects, even if the suspect has never threatened or harmed US interests.
In theory, these provisions would allow the military detention of US citizens within the United States, although in reality this would be very controversial, as it was under the Bush administration. More likely would be the US government using such authority to once again pick up British, Australian and Spanish nationals travelling abroad, as it did when Guantánamo was first opened. Governments, like Britain’s, would again be in the difficult position of proving a negative: that their nationals aren’t warriors or terrorists and should be returned home.
What is perhaps most striking about the looming Senate proposals is how out of touch they are with the policies of US allies and the opinion of the US public. US allies, including Britain, have long ago distanced themselves from the “war on terror.” The US public has likewise demonstrated a growing impatience for war without end: even radically conservative politicians are challenging presidential military authority and proposing cuts to previously untouchable defence funds.
If US policymakers would listen to their allies and constituents, and let go of their everywhere-and-endless war, there would be no authority to continue to hold men at Guantánamo, and no need for expanded powers for war-based indefinite detention. If, on the other hand, the United States further entrenches its militarised approach to counterterrorism, by enacting provisions like those pending in the Senate, we will see past mistakes repeated, and new Guantánamos will emerge to hold the latest victims of the ill-conceived worldwide war on terror.
