The Anti-Prisoners' Dilemma: Obama & Congress Are Chickening Out on Gitmo

At his press conference Tuesday, President Obama said he would press Congress to allow the Guantanamo Bay detention center to be closed, and that the hunger strike there shows "a lingering problem" that is "going to fester." But if Obama hates Gitmo so much, why didn't he close it?

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At a White House press conference Tuesday, President Obama said he would again press Congress to allow the Guantanamo Bay detention center to be closed, and that the 100 detainees currently on hunger strike there have shown that "this is a lingering problem that is not going to get better — it's going to get worse, it's going to fester." Obama's failure to get Gitmo closed is his most famous broken campaign promise from 2008, and even promised parole-style hearings have been delayed more than a year. "For a lot of Americans the notion is out-of-sight-out-of-mind, and it's easy to demagogue the issue — that's what happened the first time this came up. I'm going to go back at it, because I think it's important," Obama said. "All of us should reflect on why, exactly, are we doing this." Yes, all of us. Because what has kept Gitmo open is a chain of elected and appointed officials making sure there's no way they can be blamed if the detainees there commit a crime in the future.

"I don't want these individuals to die," Obama said, insisting the Pentagon was handling the hunger strike "as best as they can." The American Medical Association doesn't think so. The Miami Herald's Carol Rosenberg reports that the AMA has written a letter to the Pentagon saying "force feeding of detainees violates core ethical values of the medical profession." If detainees won't eat, they're fed through a tube in their noses, usually by enlisted sailors with medical training and now by medics who recently arrive in Cuba. By Monday, the prison had a 1-to-1 prisoner-to-medical-worker ratio. Five detainees have been hospitalized, and 21 are being nose-tubed.

If Obama hates Guantanamo so much, why didn't he close it? It's a complicated chain in which everyone is avoiding responsibility for hypothetical crimes committed by yet-to-be-released detainees:

Obama wanted to try some detainees in the U.S., but Congress said no. In the 2011 and 2012 defense spending bills, Congress prevented taxpayer money from paying for detainees to have trials in the U.S., as well as using an Illinois prison to hold detainees who can't be tried.

Obama wanted to transfer some detainees, but Congress said no, unless there's a court order or a national security waiver. In 2009, a Guantanamo Review Task Force found that about 80 of the then-171 detainees could be released to another country, the Herald's Rosenberg explains. But Congress passed legislation making it very difficult to transfer detainees — there must be a federal court order, or the Secretary of Defense must issue a national security waiver. (At right, three former Gitmo detainees making a new life in Palau.)

Court orders aren't happening. The U.S. Court of Appeals has overruled lower court decisions allowing detainees to be released. The Daily Beast's Clive Stafford-Smith explained last year:

A new study out of Seton Hall University School of Law finds that the federal district courts in Washington, D.C., granted 56 percent of the habeas petitions filed by detainees after the Supreme Court permitted the petitions in 2008. But since July 2010, the courts have rejected all but one.

And the Pentagon isn't issuing waivers. Defense Secretary Chuck Hagel would, on a case-by-case basis, basically have to promise the detainees would never do anything bad again. The law requires the country detainees are returned to must have "agreed to take effective steps to ensure that the transferred person does not pose a future threat to the United States, its citizens or its allies." As The Boston Globe points out points out, this "sweeping language has had a chilling effect." That being said, the Obama administration has not used this power.

And Obama has made it impossible to return detainees to the place many are from: Yemen. At The Daily Beast, Baher Azmy, legal director for the Center for Constitutional Rights, writes that "the most direct limitation on his ability to successfully close the prison is self-inflicted: a ban on all transfers to Yemen, which roughly 90 of the men at Guantánamo call home." This happened after the underwear bomber's attempted attack in 2009. A few years ago, the U.S. couldn't send detainees there because the Yemeni government was demanding a ton of money to take the detainees of American hands. But the current Yemeni government has asked the detainees be returned. Yemen is, after all, a partner in the war on terror, letting us drone their terrorists.

(Inset photos by the Associated Press. Click here for more on Obama's press conference.)

This article is from the archive of our partner The Wire.