JURIST Guest Columnist Dr. Leonard Cutler and Shelby Davis of Siena College discuss the failed attempts by President Obama to close the Guantanamo prison

As Barack Obama’s presidency comes to a close, the fate of Guantanamo prison remains unclear. Despite achieving measurable success in reducing the number of detainees held there, he has struggled to achieve his goal to permanently shut down the facility because of missed opportunities, faulty decision making, internal administration opposition and ultimately partisan political division that has resulted in an unnecessary presidential legacy.

Obama’s First Term Attempt to Close Guantanamo

After nearly seven years Guantanamo had become a legal black hole of minimal protections, minimal law, questionable legitimacy, and a negative symbol for the United States reflecting the abandonment of the rule of law and what we stand for as a democratic nation. The images of torture and the orange jumpsuits were the basis for propaganda for terrorist jihadists around the globe.

On his second day in office, President Obama issued Executive Order 13492 directing that the Guantanamo Bay military prison “shall be closed as soon as practicable, and no later than 1 year from the date of the order.” The new administration had to determine the appropriate disposition of the 240 remaining detainees who were held there. The president stressed that the closure would be consistent with national security and foreign policy interests as well as international concerns.

At a major national security speech given at the National Archives in May 2009, President Obama focused on closing the Guantanamo Bay facility and what to do about the detainees still held there. Relying on his Executive Order, the president stated that some would be tried in federal courts for violations of federal law; a second category would be tried by reconstituted military commissions for violations of the laws of war; a third category had been ordered released by the courts; a fourth category included those who could be safely transferred to other nations; and the fifth category were those who could not be tried in the federal courts or by military commission but were believed too dangerous for release or transfer. This small group would be subject to what the president called prolonged detention accompanied by procedural safeguards and oversight by both the judicial and legislative branches of government.

The Thompson Correctional Center Defeat

About five weeks prior to the originally anticipated closing date, President Obama ordered the federal government to acquire an Illinois prison to house certain detainees held at Guantanamo. The Thomson Correctional Center, a near-vacant, super-maximum-security prison was selected by the president and the Department of Defense to house a limited number of prisoners for prolonged detention. The president worked closely with the Governor and Democratic Senators from Illinois, Majority Whip Dick Durbin and Roland Burris, who strongly supported this proposal.

The administration mistakenly expected Congress to approve the requested funding as part of its military spending bill for the 2010 fiscal year, but Democratic leaders who controlled both houses of Congress refused to do so. There was considerable volatility concerning moving detainees to American soil and marginal Democrats, as well as the Republicans — who were hopeful of picking up congressional seats “— resisted the administration’s request for funding and the transfer of the remaining detainees.

The administration miscalculated the opposition which coalesced among Democrats and Republicans alike in both houses, and from the president’s strongest allies in the human rights community. It is also important to remember that 2012 would be the next national election cycle for the president, all members of the House and one-third of the Senate.

Trial by Military Commission and NDAA

Since President Obama’s second term, and after Republicans seized control of both the Senate and the House, Congress has used its appropriations authority in the National Defense Authorization Act (NDAA) which controls all spending and programs for the Department of Defense to: (1) prevent the use of any civil courts to prosecute and try alleged terrorists. The only avenue available to detainees were military commissions; (2) refuse to permit any detainee held at Guantanamo to be transferred to any jurisdiction within the borders of the United States; (3) and to deny President Obama the opportunity to close the Guantanamo Bay prison facility (NDAA, section 1027).

Why didn’t President Obama veto the NDAA if he was so adamantly opposed to the restrictive language in this Act? In fact, the president did use his veto authority on one occasion. He miscalculated and it backfired on him. He faced heavy attacks that he was holding brave US troops hostage to his pledge to close Guantanamo.

After the election, there developed internal division between the White House and the new Secretary of Defense, Chuck Hagel, and the Pentagon’s joint military staff to release and transfer detainees cleared by the military parole board to foreign host nations willing to take them. Hagel jeopardized Obama’s goal to shut down Guantanamo, which eventually resulted in Hagel’s firing in 2014, but valuable time had been lost in reducing Guantanamo’s population.

Under current Secretary of Defense Ash Carter, the process has been expedited and by the fall of 2016 the administration had 60 detainees left from the original 242 prisoners when Barack Obama took office in January 2009. Secretary Carter, Attorney General Loretta Lynch and the Joint Chiefs of Staff have insisted that current language in the NDAA does not permit the remaining prisoners to be transferred to the United States, and that it’s against the law to establish another detention facility on United States soil. The NDAA markup for 2017 retained these restrictions and also prohibited DOD from using any funds to transfer the US Naval Base at Guantanamo Bay back to Cuba.

President Obama proposed working with Congress to find a secure location in the United States to hold all remaining detainees. Although no specific facility was identified, 13 potential sites on US soil were being considered, including existing facilities in Colorado, South Carolina and Kansas.

Vulnerable Republican incumbents in 2016 weighed in on Guantanamo, including Senator Ron Johnson of Wisconsin who declared that every remaining detainee was the worst of the worst and should be locked up forever, and Pennsylvania’s Patrick Toomey and Ohio’s Rob Portman, the other targeted Senators in purple states who vowed to keep Guantanamo open indefinitely. They were all reelected.

President Obama could have, and should have, worked directly with Senator John McCain, Chair of the Senate Armed Services Committee, to develop a workable plan for permanently closing the prison. McCain was on public record advocating for “seeing the place closed,” provided an acceptable approach was agreed to.

2016 Presidential Candidate Donald Trump on Guantanamo

In the presidential campaign of 2016, Candidate Donald Trump expressed his views on the future of Guantanamo Bay:

This morning I watched President Obama talking about Gitmo, right? Guantanamo Bay which by the way we are keeping open. And we’re going to load it up with some bad dudes. Believe me; we’re going to load it up. But here’s the thing I didn’t understand. I heard this but I didn’t understand it. We spend 40 million dollars a month on maintaining this place. Now think of it; 40 million dollars a month. What do we have left in there a hundred people or something? So we’re spending 40 million dollars. I would guarantee you that I could do it for a tiny fraction, I don’t mean like 39 I mean like maybe 5, maybe 3, maybe like peanuts. Maybe in our deal with Cuba we’ll get them to take it over and reimburse us because we’re probably paying rent.

Trump wished to keep Guantanamo Bay open, and he was explicit regarding resumption of enhanced interrogation techniques, including waterboarding. At a presidential rally, he claimed, “Would I approve waterboarding? You bet your ass I would in a heartbeat….And I would approve more than that. Don’t kid yourself, folks. It works, okay? It works. Only a stupid person would say it doesn’t work…believe me, it works. And you know what? If it doesn’t work, they deserve it anyway, for what they’re doing. It works.”

A Wasted Opportunity

To further exacerbate matters for President Obama was opposition from his Attorney General, Loretta Lynch, on a White House-sponsored proposal to allow Guantanamo prisoners to plead guilty to terrorism charges in federal court by videoconference. Lynch maintained that criminal procedure laws entitle defendants to plead guilty or face a trial by jury. In the case of the Guantanamo detainees, their only option is to plead guilty or remain in indefinite detention. Even if Congress were to support such a law, the federal courts might rule that such plans were in reality “involuntary,” and detainees would not have the option of standing trial in a US courtroom.

The Obama proposal would permit the terrorism suspects to serve their sentences in a third country prison, without ever setting foot on US soil, which would circumvent the existing congressional ban on transferring detainees to the United States and would reduce the remaining number to 10 to 20 maximum. There appeared to be broad based backing from the Departments of Defense and State for this approach.

Despite objections from the Attorney General, administration officials spent two months in the spring of 2016 drafting the new law. It was sent to all involved agencies for final review before it was formally submitted to Congress. Lynch intervened directly with the president to oppose the bill and despite his support for the approach, Obama decided not to overrule his Attorney General. The bill was scrapped.

One final option surfaced for President Obama when a supportive member of Congress inserted language in the 2017 NDAA markup that allows detainees to plead guilty to criminal charges in Article III courts via teleconference and authorizes the government to transfer such detainees to third countries to serve out their sentences.

The White House prepared a Statement of Administrative Policy (SAP) supporting the proposal, which is then considered by House/Senate Conference members and the congressional leadership as the administration’s public position on the bill. Lynch intervened again and Obama once again capitulated to his Attorney General and declined to approve the issuance of the SAP despite his support for this initiative.

Conclusion

For the past eight years of his presidency, Barack Obama has struggled to come up with a cohesive and acceptable plan that addresses the concerns of Congress, and the American people in permanently shutting down Guantanamo Prison. The politics of Guantanamo are tough because the American public is worried about terrorism and having terrorists held in the United States rather than somewhere outside of our country can be scary. Granted, the president’s options were limited, but the fact remains he failed to act decisively even when they were available to him. Early in his first term, he could have issued a military order as commander-in-chief to close the facility, but it appears that he was more concerned about an inevitable court challenge from his opponents that may have labored on for most of his presidency.

He could have worked more effectively with congressional allies from both parties as well as human rights groups to forge a viable coalition in developing a workable acceptable closure plan. President Obama could have, and should have exercised his executive leadership in overruling dissenting cabinet officials who effectively disrupted his detainee policies, but he failed to do so.

Finally, President Obama mistakenly believed that he had the political capital to shut down Guantanamo in the last year of his presidency because Guantanamo could rise above politics. As he said … “I don’t want to pass this problem on to the next president, whoever it is.” The sad reality is that is exactly what he has accomplished.

It will be up to our next president, Donald Trump, and Congress to repair our reputation as a nation committed to the rule of law, and to reestablish the moral authority necessary to restore the United States as a world leader in upholding human rights. That will require bold action — including finally closing Guantanamo permanently and demonstrating in deed, that we practice what we preach. It is highly improbable that a Trump administration will move in this direction.

Dr. Leonard Cutler is a professor of political science at Siena College. He has provided testimony to House and Senate committees and the Obama Administration on Guantanamo-related issues. Shelby Davis, a political science/honors/pre-law student, assisted in researching this article.

Suggested citation: Leonard Cutler, Guantanamo, Fifteen Years After 9/11: An Unnecessary Presidential Legacy, JURIST – Academic Commentary, Nov. 30, 2016, Leonard_Cutler_guantanamo_legacy