The overwhelming odds against shuttering the Guantánamo Bay detention facility before Barack Obama leaves office have left his allies viewing his latest closure plan as an epitaph for an effort they consider marked by unforced errors.
Ever since he took office, Obama has watched the collapse of political consensus on closing Guantánamo Bay – a move endorsed by his predecessor, George W Bush, and his 2008 opponent John McCain. Instead, a wall of conservative opposition formed which Obama has shown no ability to penetrate. Seven years of entreaties, reiterated the president on Tuesday, have yielded only emboldened resistance to wait him out.
Yet to former and current administration officials and human rights lawyers who represent Guantánamo detainees, the conservative resistance is only half the story.
From their vantage, Obama and his team stumbled repeatedly – in concept, strategy and tactics – ceding critical terrain to those seeking to keep Guantánamo open, inside and outside his administration.
Beginning in 2009, these compounded errors have left Obama to make last-ditch arguments that keeping a man detained indefinitely without charge inside the United States is cheaper than keeping him detained indefinitely without charge at Guantánamo.
“The president,” said Wells Dixon of the Center for Constitutional Rights, “has no one but himself to blame for the fact that Guantánamo has been open longer under his watch than under the prior administration.”
When did the idea of closing Guantánamo begin to go wrong? There is little consensus, but May 2009 turns out to have been a critical month.
As one of his first acts in January 2009, the president decreed that Guantánamo be closed within a year and set subordinates to work on the details. As Obama spoke of “responsibly” closing the facility, civil libertarians began to perceive a gap between what they meant by closing Guantánamo and what the White House meant.
They wanted the president to announce that he would try the long-held detainees in federal courts, then hold those convicted and release those acquitted or unable to stand trial because torture tainted the evidence against them. They also wanted him to forswear trying those charged in military commissions that the supreme court had junked in a 2008 ruling. Every such group, from the ACLU to Amnesty International to Human Rights Watch, understood the phrase “closing Guantánamo” to mean putting an end to those practices, which they contended had undermined longstanding US commitments to the rule of law and human rights.
Instead, Obama gave a speech on 21 May 2009 at the National Archives that treated “closing Guantánamo” with strict literalism.
Obama used all of the rhetoric against Guantánamo that the groups had compiled during the Bush years. Guantánamo had “set back [America’s] moral authority” and was a “rallying cry for our enemies”. Some 240 detainees were in a “legal limbo”. The military commissions were less efficient than civilian courts in dispensing justice. Guantánamo, all told, was “a mess”.
Yet with the exception of torture, Obama chose to retain every objectionable practice at Guantánamo. While he said he preferred to try detainees in civilian courts, he defended the military commissions, and downplayed his 2006 Senate vote against them, calling them an “appropriate venue for trying detainees for violations of the laws of war”.
Most importantly, Obama conceded a role for indefinite detention – this time in the United States. He called them “a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States”.
Over the years, administration aides would speak of them as a detail, an “irreducible minimum”, those left after men who posed a marginal threat were transferred out. Like Obama, they said this was a “responsible” approach to closing Guantánamo.
The human rights groups so encouraged by Obama’s pledge to close Guantánamo smelled a bait-and-switch. Even if Obama got what he wanted, he wouldn’t be closing the facility in any substantive fashion. The indefinite detentions without charge, the military commissions, everything, save torture, that made Guantanamo internationally infamous would live on, except this time closer to home.
Bitter with disappointment, the campaigners and lawyers came to call the prison in Thomson, Illinois, where Obama wanted to hold the residual Guantánamo population “Gitmo North”. Yet many would continue to mute their criticisms of Obama, whom they felt had his heart in the right place and was preferable to Republicans like the current Senate majority leader, Mitch McConnell, who saw no problem with Guantánamo.
Interviews over the past seven years with numerous administration officials who worked on detention issues indicate that they did not seriously consider an alternative approach, both because they feared letting dangerous people free and because they feared the political consequences of doing so.
They held with that approach even as civil libertarians warned them, publicly and in closed-door meetings at the White House and Justice Department, that circumscribing their focus from the start would lead them inexorably on to the terrain favored by the plan’s opponents. If the US was going to do the same things somewhere else, what was the point of clearing out Guantánamo?
As Obama prepared to give his National Archives speech, intended to rally support for his Guantánamo approach, legislative opposition began to coalesce – not just from Obama’s enemies, but from his friends.
On 4 May, the chairman of the powerful House appropriations committee, liberal Democrat David Obey, stripped $80m devoted to the Guantánamo closure out of a wartime funding bill destined to pass. Obey, in a preview of what was in store from Capitol Hill for years, savaged Obama’s closure plan as pointlessly vague.
“While I don’t mind defending a concrete program,” he told reporters, “I’m not much interested in wasting my energy defending a theoretical program.”
The day before the Archives speech, the Democratic-held Senate dealt Obama’s plans an even harsher blow. By a blowout bipartisan margin of 90-9, the Senate rejected financing the closure. A Senate leadership aide at the time, stunned by what she considered White House lassitude, explained why even people inclined to help Obama would vote against the measure: Obama had decreed Guantánamo be closed without presenting lawmakers with a specific plan they could defend to skeptical constituents.
In his Archives speech, Obama hit out at the emerging demagoguery around closing Guantánamo, decrying “30-second commercials … designed to frighten the population”. But he said much less about another May 2009 decision that acquiesced to those fears.
A federal judge in 2008 had ordered 17 ethnically Uighur men held at Guantánamo be freed. But since the US could not transfer them back to China without the strong likelihood of their being tortured, Obama had found a different solution: resettle them in northern Virginia, where the local Uighur community welcomed them with open arms.
Instead, by May 2009, the local congressman, Republican Frank Wolf, raised furious objections when he learned of the plan. Without evidence, Wolf argued they might “directly threaten” his constituents. Obama abandoned the resettlement plan, and found homes for four of the Uighurs in June in Bermuda, where they were photographed swimming joyfully and eating ice cream.
Cori Crider of the human rights group Reprieve, who has represented numerous Guantánamo detainees, considers the Uighur resettlement an early, unforced and underappreciated capitulation that sowed the seeds for further failure.
“Just think for a minute if those snapshots had been in America – if from spring ’09, everybody’s mental picture of ex-detainees was five dudes in T-shirts and hipster beards at a backyard barbecue. Everything later would have gone down differently,” Crider said.
“From that point there was blood in the water: congressional Republicans had smelled Obama’s weakness, and they exploited it every chance they got. He never climbed back from that. But then, he never really tried.”
It would not be until December 2013, more than five years after Judge Ricardo Urbina ordered their release, that the final three Uighur detainees left Guantánamo, for Slovakia.
Still, the administration thought it could reach a broader deal in Congress.
Led by Rahm Emanuel, Obama’s first chief of staff, the White House looked to GOP Senate hawk Lindsey Graham. Although Graham was mercurial, he was pragmatic and had points of agreement with Obama that neither side liked to emphasize, including an opposition to torture that set him out of step with many in his own party. Beginning in 2009, as the two sides worked to revitalize the military tribunals at the base – ultimately passing the Military Commissions Act of 2009 in October – the White House and Graham’s office worked toward what they hoped would be a grand bargain on Guantánamo.
As implied by the term, Graham spent the summer of 2009 looking beyond Guantánamo. His basic proposition to the White House, reported in detail in Charlie Savage’s 2015 book Power Wars, was to deliver the votes in the Senate for shuttering Guantánamo and opening a replacement facility. In exchange, Graham wanted a broader wartime detentions policy than Obama was willing to embrace. It would allow the US military to continue making captures far beyond the declared battlefields of Iraq and Afghanistan, sending them to the alternative site. When trial was an option, it would occur in the military commissions.
In 2010, Obama’s losses were compounded, from unexpected quarters. Khalid Sheikh Mohammed and four others were charged with conspiracy in the 9/11 attacks, a capital case, intended to show the capacity for federal civilian courts to take on the hardest cases. But New York’s mayor, Michael Bloomberg, rejected the trial as a potential danger. The White House and Justice Department were incensed but impotent and the trial was scrapped.
Ultimately, the Graham-Obama deal died. Graham came out of it gaining more of what he wanted than did Obama. By 2012, the military commissions again took up the Khalid Sheikh Mohammed prosecution – although four years later, there is still no end in sight for pre-trial hearings.
What Graham didn’t get was something Obama had pledged in the Archives speech to create: “clear, defensible, and lawful standards” for dealing with future wartime detainees, beyond those captured on the active battlefield of Afghanistan.
Since Obama did not want to add to the Guantánamo population, he set up ad hoc rules for captures, symbolized by the spring 2011 capture of Ahmed Abdulkadir Warsame, a Somali supporter of al-Qaida, whom navy forces held aboard the amphibious assault ship USS Boxer for months before sending him to a New York federal jail.
In Senate testimony that June, Adm William McRaven, who commanded the Seal raid that killed Osama bin Laden, testified that the administration lacked a detentions policy, which had forced the Boxer brig to be used as a floating Guantánamo surrogate.
Graham and fellow hawks seized on McRaven’s testimony as evidence that the effort to close Guantánamo was leading the US into using untenable detention alternatives, the same type of lawless improvisation Obama had deplored at Guantánamo in the first place.
By then, defense analysts observing the intensity of Obama’s drone strikes in Pakistan, Yemen and Libya were drawing another conclusion. A reluctance to capture suspected terrorists, and send them into the morass of detentions policy, was contributing to the overall lethality of Obama’s counter-terrorism. Obama was killing terrorist suspects rather than capturing them.
Republicans who controlled Congress in 2011 ended their resurgent year with another victory. Inside a must-pass bill authorizing the annual half-trillion in Pentagon funding, they placed a prohibition on using any funding at all to transfer Guantánamo detainees to the US for any purpose.
Obama first threatened to veto the bill and then capitulated. It established a pattern that would hold for the next five years: to call the effort irresponsible, but then – sometimes after giving an actual veto – to sign the bill rather than inviting the obvious attacks that he was holding US troops hostage to his Guantánamo closure pledge. The measure destroyed the Justice Department’s plans to prosecute whatever Guantánamo detainees it could in federal courts.
But the Justice Department was also working at cross purposes with the Guantánamo closure.
Ever since the supreme court ruled in 2004 that Guantánamo detainees had the right to challenge their detention in habeas corpus cases, the self-designated “Gitmo bar” had racked up victories. Though the cases were drawn out and featured lengthy appeals, they were another avenue by which the Guantánamo ranks thinned, through the attrition of successful litigation.
Members of the Gitmo bar figured that Eric Holder’s Justice Department – which contained lawyers who represented terrorism suspects, smeared in a 2010 attack ad as the “al-Qaida Seven” – would be a natural, if informal, ally. Instead, the federal lawyers went hard at the habeas cases.
By January 2010, the Washington DC federal circuit court presiding over the habeas cases had issued 32 rulings in favor of Guantánamo detainees and eight against them. The tally currently stands at 39 rulings in favor and 25 against, a testament to the intensity of the Justice Department attorneys. Habeas hearings all but ground to a stop in October 2011 after the Justice Department won a complex case against a Yemeni detainee, Adnan Latif, that in effect gave even fragmentary government intelligence reports on detainees the presumption of truth.
The most recent habeas challenge in the circumscribed system came in August, in a case concerning Tariq ba Odah, a Yemeni man approved for release in 2009. Hunger strikes had left Ba Odah weighing 76lb and in dire physical health. Yet the Justice Department not only challenged his release, it took the exceptional step of doing so in a secret filing.
“It makes no sense,” said Dixon, Ba Odah’s attorney. “When it comes to closing Guantánamo, the government’s decision to fight the Ba Odah case is a self-inflicted gunshot wound to the head for the administration.”
Latif himself, who was never charged with any crime, died at Guantánamo on 11 September 2012 in what authorities called a suicide.
“When Obama became president, the federal courts were routinely granting habeas petitions, because the evidence used to hold most of these guys was trash. Judges would just look at it and say, ‘After seven, eight years – this is all you got?’ Lots of people went home,” Reprieve’s Crider said.
“The president should have directed the Justice Department to stop taking stupid points and petty appeals.”
One reason the Justice Department pursued the habeas cases so hard was its client: the Pentagon. Senior US military officers, unconvinced by the push to close Guantánamo and wary of the administration’s allergy to a formal detention policy, did not want to risk setting a precedent for courts ordering battlefield captives free, even as Guantánamo, thousands of miles from any active battlefield, presented a different set of circumstances.
After Obama won re-election in 2012 and recommitted himself to a new push to close the facility, frustrations at the White House and the State Department with the military’s joint staff and the new defense secretary, Chuck Hagel, took root.
Administration officials saw the Pentagon slow-walking decisions on releasing what some considered uncontroversial detainees, either those cleared for transfer by a 2010 internal review or by a quasi-parole board to thin the Guantánamo ranks. Even painstaking resettlement deals became subject to highly bureaucratic Pentagon obstruction. Even as the White House pointed to the parole board as a responsible solution to get detainees out of Guantánamo, cases trickled to a slow pace, prompting former officials to loudly proclaim that the sloth – all of which was generated internally, far from the discontent of Congress – jeopardized the goal of shuttering Guantánamo.
Divisions within the administration over the intransigence became broader. It took Hagel five months to even appoint an official to spearhead Guantánamo closure efforts. Ultimately, the frustration contributed to Obama firing Hagel in 2014, although officials today say intransigence persists, even as the pace of transfers has accelerated to the point where Guantánamo is down to 91 detainees.
Far less public is a years-long battle over another self-inflicted challenge: the hunger strikes.
In 2013, despondent at the prospect of Obama failing to release them, more than 100 detainees launched a hunger strike that became an international cause célèbre. One wrote in the New York Times of the forced-feeding counter-measure taken by guards, who forced him out of his cell, that he likened to torture.
One response, taken at the initiative of Gen John Kelly, then the new commander of all forces in South America as well as Guantánamo, was to order a press blackout. Guantánamo and Pentagon officials, who once provided daily tallies of hunger strikers, refused to give out any information at all. They maintain today that the strike – which at one point they gave the euphemism “long-term non-religious fasting” – is all but over, and, backed by Obama, have argued that the only alternative to the tube feedings is to allow the detainees to die.
In the course of his habeas case, a Syrian detainee, Abu Wa’el Dhiab, in 2013 prompted the Justice Department to disclose that the military has kept extensive videotapes of the forced feeding. Several news organizations, including the Guardian, joined in a successful lawsuit to disclose censored portions of the tapes – but the Justice Department continues to fight the disclosure through appeals to higher courts.
Several members of the Gitmo bar, now resigned to continued representation of Guantánamo clients, consider the decision emblematic of Obama’s broader self-inflicted failures. Release of the tapes, they argue, would show a procedure brutal enough to spark international outcry, which might aid Obama in shuttering Guantánamo. Instead, the administration fights their release, even as its options for closing the detention facility now hinge on convincing a Republican Congress in a presidential election year to reverse course on an obstruction for which they have paid no political price, in order to hand a victory to a hated president.
A typical response from a GOP congressman came from Florida’s Vern Buchanan, who greeted Obama’s Tuesday plan by stating: “As our nation fights Isis and radical Islamic extremism around the world, the last thing we should do is close a facility used to house and interrogate individuals determined to kill Americans.”
Several members of the Gitmo bar believe their detainees will die at Guantánamo without having ever been charged. The quasi-parole board has turned up basic mistakes in identifying detainees, such as Mustafa al-Aziz al-Shamiri, whose 13-year detention the board revealed was based in part on the military believing it had a different person. The military commissions have tangled into a procedural snarl, and have even yielded suspicions that the government inserted spies on the defense teams, all of which jeopardizes the commissions’ viability. Some administration officials, who would not speak for the record for this story, consider Guantánamo’s closure in any form a lost cause.
“President Obama gave my clients the single most dangerous commodity there is in Guantánamo Bay: hope. And then he let them down,” said Crider.