On Gitmo, President Obama Isn't Fooling the Press Anymore

Sure, Congress has thwarted some of his plans. But he doesn't himself favor ending indefinite detention.

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Before Barack Obama was elected president, he won over many civil libertarians and Bush Administration critics by promising to close the prison at Guantanamo Bay, arguing that it was wrong and unnecessary to indefinitely lock people in cages without charges, trial, or hope of release. The strong stance he took during the campaign has led many defenders of his White House to conclude that his failure to keep his promises on Gitmo isn't actually his fault. They blame an intransigent Congress. It is, in fact, the case that Congressional Republicans and many Democrats have done their best to thwart all efforts to try, transfer, or release the Gitmo detainees.

Quite independently of Congress, however, President Obama has broken his campaign promises, and transgressed against the notions of basic justice that he himself articulated. Every member of Congress on the wrong side of the Gitmo issue deserves our opprobrium. The conservatives who tried to shame pro-bono attorneys at Gitmo desserve our opprobrium.

So does Obama.

The emails and comments I receive when I write about this subject and conversations I have with people who don't follow politics closely suggest that many Obama voters continue to believe that he has done his best to remedy the injustice of indefinite detention -- that the blame for transgressing against basic norms of justice falls entirely on the Bush Administration and GOP legislators. In fact, Obama is a supporter of indefinite detention. But he does his dishonest best to preserve the illusion that his critique of Gitmo hasn't changed since he was a candidate.

This has been the case for years. But this week, the political press has finally started to call him on his dishonesty in large numbers, exposing his recent Gitmo remarks as disingenuous preening.

The remarks were delivered on Tuesday, when Obama addressed the ongoing hunger strike at Guantanamo Bay, where American guards are presently engaged in force-feeding prisoners.

Here's a transcript:

QUESTION: Mr. President, as you're probably aware, there's a growing hunger strike at Guantanamo Bay among prisoners there. Is it any surprise, really, that they would prefer death, rather than have no end in sight to their confinement?

OBAMA: Well, it is not a surprise to me that we've got problems in Guantanamo, which is why when I was campaigning in 2007 and 2008 and when I was elected in 2008, I said we need to close Guantanamo.

I continue to believe that we've got to close Guantanamo. I think, well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us, in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

Now, Congress determined that they would not let us close it. And despite the fact that there are a number of the folks who are currently in Guantanamo, who the courts have said could be returned to their country of origin or potentially a third country, I'm gonna go back at this. I've asked my team to review everything that's currently being done in Guantanamo, everything that we can do administratively, and I'm gonna reengage with Congress to try to make the case that this is not something that's in the best interest of the American people.

And it's not sustainable. I mean, the notion that we're going to continue to keep over 100 individuals in a no-man's land in perpetuity, even at a time when we've wound down the war in Iraq, we're winding down the war in Afghanistan, and we're having success defeating Al Qaeda core, we've kept the pressure up on all these trans-national terrorist networks.

When we transfer detention authority in Afghanistan, the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are. It is contrary to our interests and it needs to stop.

Now, it's a hard case to make because, you know, I think 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.

QUESTION: Meanwhile, you continue to force-feed (inaudible).

No, I don't -- I don't want these individuals to die. Obviously, the Pentagon is -- is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this. Why are we doing this? I mean, we've got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing's happened to them. Justice has been served. It's been done in a way that's consistent with our Constitution; consistent with due process; consistent with rule of law; consistent with our traditions.

The -- the individual who attempted to bomb Times Square, in prison serving a life sentence. Individual who tried to bomb planes in Detroit, in prison serving a life sentence. A Somali who was part of al-Shabaab who we captured, in prison.

So we can handle this.

And I understand that in the immediate aftermath of 9/11, with the traumas that had taken place, why for a lot of Americans the notion was somehow that we had to create a special facility like Guantanamo and we couldn't handle this in a normal, conventional fashion. I understand that reaction. But we're now over a decade out. We should be wiser. We should have more experience in how we prosecute terrorists. And this is a lingering, you know, problem that is not gonna get better. It's gonna get worse. It's gonna fester.

And so I'm gonna, as I said before, we're -- examine every option that we have administratively to try to deal with this issue, but ultimately we're also gonna need some help from Congress. And I'm gonna ask some -- some folks over there who, you know, care about fighting terrorism, but also care about who we are as a people to -- to step up and help me on it.

I've preserved the emphasis of Ben Wittes, a senior fellow in governance studies at the Brookings Institution who writes at the always informative blog Lawfare. "The President's comments are bewildering because his own policies give rise to the vast majority of the concerns about which he so earnestly delivered himself in these remarks," Wittes commented. "Remember that Obama himself has imposed a moratorium on repatriating people to Yemen. And Obama himself has insisted that nearly 50 detainees cannot either be tried or transferred. True, he would hold such people in a domestic facility, rather than at Guantanamo Bay. But so what? Does the President not understand when he frets about 'the notion that we're going to continue to keep over 100 individuals in a no-man's land in perpetuity' that if Congress let him do exactly as he wished, he would still be doing exactly that -- except that the number might not reach 100 and the location would not be at Guantanamo?"

This is what vast swaths of the public, right and left alike, don't understand about Obama's position. Yes, he wants to close Guantanamo Bay, in the sense that he wants to shutter the island facility in Cuba. But he wants to continue indefinitely detaining people without charges or trial. And not just dangerous terrorists who can't be tried because the Bush Administration tortured them.

"For Obama to talk in the language of the ACLU when what he means is that he wishes to hold fewer people than are now at Guantanamo and to do so at Location B, rather than at Location A, is profoundly dishonest," Wittes adds. "If Obama had meant that he wants to bring to an end detention -- which is legitimate as long as hostilities continue -- as he brings hostilities to a close, he could have said as much very simply. He didn't need to go on a rant about how much we had learned about how to handle terrorists over the last ten years. He didn't need to wring his hands about how much damage Guantanamo does to America's image. He could simply have stated that detention under the laws of war is proper as long as hostilities continue, that he hopes to bring hostilities to a close in short order, that releases will be inevitable at that point, and that Congress should give him more flexibility with respect to transfers now. Instead, he described himself as fighting against a policy he has, in fact, adopted."

As you can see, Wittes isn't bothered by indefinite detention at Guantanamo Bay so long as hostilities persist. Glenn Greenwald has a different position. Like Senator Obama, Greenwald believes the present policy is immoral even if the War on Terrorism is still in progress. What the two men agree about is that Obama's Gitmo rhetoric is egregiously misleading. Greenwald has been saying so for years, and last year, he wrote a post at Salon demonstrating that Obama's departure from his own lofty rhetoric on Gitmo prisoners began almost immediately after he took office, before legislators had done anything to constrain his actions. Said Greenwald:
Every time the issue of ongoing injustices at Guantanamo is raised, one hears the same apologia from the President's defenders: the President wanted and tried to end all of this, but Congress -- including even liberals such as Russ Feingold and Bernie Sanders -- overwhelming voted to deny him the funds to close Guantanamo. While those claims, standing alone, are true, they omit crucial facts and thus paint a wildly misleading picture about what Obama actually did and did not seek to do.

What made Guantanamo controversial was not its physical location: that it was located in the Caribbean Sea rather than on American soil (that's especially true since the Supreme Court ruled in 2004 that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty -- and what still makes it such -- is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama's so-called "plan to close Guantanamo" -- even if it had been approved in full by Congress -- did not seek to end that core injustice. It sought to do the opposite: Obama's plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.

Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. President Obama fully embraced indefinite detention -- the defining injustice of Guantanamo -- as his own policy.

In February, 2009, the Obama DOJ told an appellate court it was embracing the Bush DOJ's theory that Bagram detainees have no legal rights whatsoever, an announcement that shocked the judges on the panel hearing the case. In May, 2009, President Obama delivered a speech at the National Archives -- in front of the U.S. Constitution -- and, as his plan for closing Guantanamo, proposed a system of preventative "prolonged detention" without trial inside the U.S.; The New York Times - in an article headlined "President's Detention Plan Tests American Legal Tradition" - said Obama's plan "would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free." In January, 2010, the Obama administration announced it would continue to imprison several dozen Guantanamo detainees without any charges or trials of any kind, including even a military commission, on the ground that they were "too difficult to prosecute but too dangerous to release." That was all Obama's doing, completely independent of anything Congress did.

When the President finally unveiled his plan for "closing Guantanamo," it became clear that it wasn't a plan to "close" the camp as much as it was a plan simply to re-locate it -- import it -- onto American soil, at a newly purchased federal prison in Thompson, Illinois. William Lynn, Obama's Deputy Defense Secretary, sent a letter to inquiring Senators that expressly stated that the Obama administration intended to continue indefinitely to imprison some of the detainees with no charges of any kind. The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.

Despite the fact that all this information has been publicly available for years, Greenwald has had a very difficult time getting anyone to listen. As he said this week, "I just don't know how to get people to understand this. They've been told so often that Obama tried to close Gitmo but Congress stopped him that they can't realize that, though narrowly true, it's extremely misleading." His frustration is understandable. Even this week, if you read, say, this ThinkProgress coverage of Obama's Gitmo remarks, or this Washington Post account, you'd be totally shocked by the facts in Greenwald's posts. But perhaps the truth is finally beginning to be understood.

Here's Maureen Dowd in her latest New York Times column:

Asked about the hunger strike, the former constitutional law professor in the White House expressed the proper moral outrage at holding so many men "in no-man's land in perpetuity." But it sounded as though he didn't fully understand his own policy. Closing Guantánamo doesn't address the fundamental problem of rights. Obama's solution, blocked by Congress, is to move the hornet's nest to a Supermax prison in Illinois -- dubbed "Gitmo North" -- and keep holding men as POWs in a war that has no end. They're not hunger-striking for a change in scenery. It's true that Congress put restrictions on transfers of individuals to other countries with bad security situations. But, since 2012, Congress has granted authority to the secretary of defense to waive those restrictions on a case-by-case basis. The administration hasn't made use of that power once. So it's a little stale to blame Congress at this point.

What are the consequences of the failure for which Obama and Congress share blame? Prisoners, finding themselves in an island prison with no prospect of ever getting out, have understandably started a hunger strike, one of the few means they have of protesting their status. Their guards have responded. "I will never forget the first time they passed the feeding tube up my nose," one inmate, who is cleared for release but detained anyway, has stated. "I can't describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn't. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone."