President Obama advocated for the closure of the Guantanamo Bay detention facility and civilian trials for the alleged 9/11 conspirators since his election in 2008. Despite initial progress and attempts to release or transfer detainees to third party countries, as of the tenth anniversary of September 11, 2001, the facility remained open, with over 170 detainees still being held there.
Soon after the US presidential election in November 2008, reports revealed that Obama's advisers had already begun working on a plan to hold criminal trials in federal courts for a large number of Guantanamo Bay detainees. In his first week in office in January 2009, Obama took steps to close the detention facility and directed military prosecutors to pursue a 120-day continuance in military commission proceedings against five alleged 9/11 co-conspirators, including Khalid Sheikh Mohammad (KSM). Later that week, Obama issued two executive orders to close Guantanamo within one year. The orders also instructed Secretary of Defense Robert Gates to immediately halt military commission proceedings pending a comprehensive review of all Guantanamo detentions under the supervision of the Attorney General.
Initial congressional efforts to oppose Obama's Guantanamo plan failed. In May 2009, the US Senate voted 54-45 to defeat an amendment to an appropriations bill that would have prevented Guantanamo detainees accused of involvement in 9/11 from being tried in federal courts. Obama defended his stance that detainees charged with violating American criminal law should be tried in federal courts "whenever feasible" by citing the convictions of Ramzi Yousef, Ali Saleh Kahlah al-Marri, and 9/11 conspirator Zacarias Moussaoui in civilian courts.
In September 2009, a US military judge granted the government's request for a 60-day continuance in the military trial of five accused 9/11 conspirators: KSM, Ramzi Bin Al Shibh, Walid Bin Attash, Ali Abdul-Aziz Ali and Mustafa Ahmed Al Hawsawi. Obama then signed the Department of Homeland Security Appropriations Act of 2010, allowing for Guantanamo detainees to be transferred to the US for prosecution and, among other provisions, requiring certain information about each transferred detainee to be disclosed to Congress, including costs, legal rationales and possible security risks.
Facing pressure to meet the administration's self-assigned January 2010 deadline, Attorney General Eric Holder officially announced in November 2009 that the government would pursue federal charges against KSM and the four other accused 9/11 conspirators detained at Guantanamo in the US District Court for the Southern District of New York.
However, the Obama administration missed the January 2010 deadline. Following the 2010 mid-term congressional election, Congress halted plans to close Guantanamo with both the US Senate and the House of Representatives giving final approval to a defense spending bill blocking Guantanamo detainees from being transferred to the US. In January 2011, the closure of Guantanamo was further delayed when Obama signed the Ike Skelton National Defense Authorization Act of 2011, which barred the use of funds to transfer detainees into the US. In April 2011, the Obama administration abandoned its plan to try the accused 9/11 conspirators in federal courts as Holder announced that the defendants would be tried before a military commission.
JURIST Guest Columnist Jonathan Hafetz argued in April 2011 that the failure to close Guantanamo Bay is an unwelcome step in justifying arbitrary detention and torture:
The irony is that the United States is much further from closing Guantanamo now than it was after Obama's post-inaugural pledge.
Congress deserves much of the blame. On top of previous legislation obstructing detainee resettlement, Congress has now barred the use of military funds to bring detainees to trial in the United States. This measure not only ensured the demise of the administration's plan to prosecute KSM in federal court. It also signaled the degree to which a vital tool in fighting terrorism--criminal trials--could be sacrificed on the altar of political expediency. As Attorney General Eric Holder acknowledged in announcing the KSM-reversal, both America's security and values are best served by federal prosecutions of suspected terrorists.
Obama, however, bears responsibility as well. The administration did not lay the necessary political groundwork for the federal prosecution of KSM and his co-defendants, failing, for example, to enlist the key powerbrokers in New York, where the trial was to have taken place.
More generally, the president never capitalized on his post-election momentum to operationalize his promise to close Guantanamo. Instead, he created a multi-agency task force to conduct a year-long study of detainee cases. Without effective leadership from the White House, a fierce backlash filled the political vacuum. Before long, the tide had turned, and what had once been a political challenge became a political impossibility.
However, JURIST Guest Columnist Andrew Puglia Levy
, an attorney in Washington, DC, who served in the US Department of Homeland Security from 2006 to 2009, argued in June 2009 that there are significant risks to bringing some Guantanamo detainees to the US for trial because the Obama administration's legal options for holding them here are limited and problematic:
Although trying detainees in Article III courts is President Obama's prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or could receive short sentences. ...
It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods.
Widespread allegations of detainee mistreatment as well as... released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors' overall confidence in the government's case. ... Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges. ...
Despite the Obama administration's abandonment of its plan to try the 9/11 suspects in federal courts, the administration continued to push for other terror suspects to be tried in the US. As a result, a heated debate always surrounded the proper place to try terrorism suspects