JURIST Special Guest Columnist Jonathan Hafetz, of Seton Hall Law School says that the failure to close Guantanamo Bay is an unwelcome step in justifying arbitrary detention and torture, and wonders how far indefinite detention and military commissions will sweep….

Two days after his inauguration, President Obama announced that he would close the U.S. prison at Guantanamo Bay within a year. Obama’s pledge, along with his accompanying executive orders banning torture and secret detention, heralded a return to the rule of law.

More than two years later, Obama’s plan to close Guantanamo is in shambles. While Obama has repatriated 67 Guantanamo prisoners, 172 remain. Political opposition and legal hurdles now complicate further resettlement efforts. Although the Obama administration clings to his goal of shutting the prison, Defense Secretary Robert Gates has acknowledged the prospects for closure are very, very low,” and the Pentagon is pressing ahead with new military commissions at the base. Last week, the administration formally abandoned its plan to try Khalid Shaikh Mohammed (KSM) and four other alleged 9/11 plotters in federal court, stating that they would be prosecuted in military commissions (as the Bush administration had originally planned).

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.

The Obama administration’s handling of Chinese Uighur detainees is emblematic of this larger failure. In 2008, a federal judge ordered the release of seventeen Uighur detainees after the government conceded that they presented no threat to the U.S. Because the Uighurs could not be returned to China (where, as dissidents, they faced imprisonment and possible torture), the only remedy was release in the United States, at least until another home could be found.

Administration lawyers developed a plan to settle several Uighurs in northern Virginia. Resettlement would have helped demonstrate to the public that Guantanamo detainees were not all “the worst of the worst,” as Bush administration officials had falsely branded them. More importantly, it would have helped persuade other countries to accept more detainees by showing America was doing its fair share to shut down the prison. As Jane Mayer has detailed in the New Yorker, Obama killed the plan after word leaked and Republicans declared their opposition to bringing any detainees to the U.S.

Obama’s failure to close Guantanamo though is more than a matter of political missteps. It is also a consequence of his acceptance of the larger detention system that Guantanamo embodies.

In his May 2009 speech at the National Archives, Obama accepted several key premises of the Guantanamo system even as he repeated his pledge to close the prison itself. To be sure, the president expressed a preference for prosecuting suspected terrorists in the regular court system. But he also accepted that some detainees could be held indefinitely without trial while others could be charged in military commissions, a second-class justice system that lacks the constitutional safeguards and legitimacy of the federal courts. Obama’s recent executive order creating a system of periodic review for prisoners slated for indefinite detention institutionalizes this policy.

Obama, in short, sought only to reform Guantanamo not to end it. Thus, rather than scrapping military commissions, the president backed legislation that propped up the commissions by making some improvements.

The result is not simply “Guantanamo lite,” but something more corrosive. The failure to close Guantanamo has helped justify the policies of arbitrary detention and torture that spurred its creation in the first place. Further, it has vindicated the politics of fear. “If Guantanamo is so difficult to close,” Americans may wonder, “perhaps it should remain open.”

Guantanamo was once seen as morally and legally unacceptable, and closure commanded strong bipartisan support. But today Guantanamo appears a necessary evil. Better that Obama had never promised to close Guantanamo than to promise and to fail.

The question no longer is “Will Guantanamo close?” (It won’t, at least not anytime in the foreseeable future). Rather, it is what form Guantanamo will take, and how broadly its core features of indefinite detention and military commissions will sweep.

Jonathan Hafetz is a professor at Seton Hall Law School. He has litigated leading post-9/11 detainee cases and is the author of a new book, “Habeas Corpus after 9/11: Confronting America’s New Global Detention System” (NYU Press).

Suggested Citation Jonathan Hafetz, Failing to Close Guantanamo, JURIST – Forum, Apr. 14, 2011, http://jurist.org/forum/2011/04/failing-to-close-guantanamo.php