On April 30 President Barack Obama rekindled public debate and conversation concerning this nation’s prison for detainees at its Guantánamo Bay, Cuba Naval Base by suggesting during a press conference that the facility must be closed. The President was succinct concerning why:
It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens co-operation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.
President Obama also remarked that such is “a hard case to make because it’s easy to demagogue the issue.” Indeed, as if in response to the President’s point, a spokesman for Senate Minority Leader Mitch McConnell of Kentucky (R), a leading opponent of closing the prison, quickly issued a statement observing, “there is wide, bipartisan opposition in Congress to the president’s goal of moving those terrorists to American cities and towns.” The President has never advocated such an action and did not do so at his press conference, but the response from McConnell’s office illustrated Obama’s point. The plan the President had offered, which the Senate rejected in a lopsided 90-6 vote in 2009, would have seen a share of the current institution’s 166 inmates (roughly 80 as the administration has cleared 86 formally for release) transferred to a “Super Max” federal penitentiary near Joliet, Illinois, a move very unlikely to endanger any Americans. That is, their incarceration in a maximum-security prison would not represent, “moving terrorists to America’s cities and towns.” This said, many media accounts dubbed the facility’s closure a “tough sell” politically in Congress.
The important question this claim raises is, why? Why exactly do so many Republicans and Democrats wish to maintain this patently rights-violating and expensive facility to retain individuals indefinitely, many without charge or trial or who already have been declared “not a danger to our nation”? Part of the answer may lie in public opinion polling, which has in the past found 70% of Americans favoring maintaining the facility. According to media commentators, this response was out of predictable fear of allowing “hard-core” terrorists on American soil. That view is obviously misinformed, but Congress has done nothing to disabuse Americans of it and some political leaders have sought to use the sentiment manipulatively for their own partisan purposes.
The prison is the result of a George W. Bush administration decision. The location was apparently selected deliberately to avoid United States legal jurisdiction so as to ensure space for torture and ill treatment of detainees in order to garner information for the “war on terror.” Now, however, formal revelation of those actions likely would be damning in trial, as when undertaken, the actions violated both United States and international law. Lawmakers also apparently fear as politically toxic the prospect of any released individual later engaging in a fresh terrorist act.
At one point during the Bush years more than 800 individuals were held at Guantánamo and an untold number of them were cruelly treated or tortured. The Obama administration has not placed any new inmates at the facility and has sought to continue to negotiate agreements with other nations to transfer for detention or trial those no longer judged risks to the United States, and to move the rest to the mainland for trial and/or incarceration. Congress, however, has blocked all efforts to move detainees to the U.S., including specifically barring the use of funds for such purposes. The legislature has, however, left the President the option of asking his Secretary of Defense to certify that individuals transferred and later released would never pose any risk to the nation, a promise that appears beyond the administration’s control to ensure. Such certification poses a Trojan Horse-style political liability the White House has so far been unwilling to assume in any case. Meanwhile, the President has chosen voluntarily not to return 50 detainees to their home nation of Yemen, due to the continuing instability in that country.
This current state of political and administrative limbo has caused many of those enduring incarceration to lose hope, and approximately 100 of the inmates now at Guantánamo are currently participating in a hunger strike. In still another cruel twist in the heartrending history of this facility, the administration is now force-feeding 21 of those men without their consent, a practice that violates international law and which has drawn withering criticism from the United Nations.
So the upshot of this very sad situation is that the President’s opponents criticize him for potentially endangering Americans by foisting “hardened terrorists” on the nation whenever he suggests the facility should be closed. Progressives meanwhile condemn him equally vigorously for not having shuttered the facility already, thus failing to fulfill an important campaign promise. In the meantime, the administration is facing an untenable scenario with the detainees still present at the facility.
Whether the President will be willing to bear the political and possibly legal risk of certifying prisoners for release by indicating they will never pose a threat to the United States, his only known recourse as this is written, remains to be seen. Whether other nations will be willing to take prisoners so certified, assuming such occurs, also remains to be seen, as does what will happen to those detainees for whom alternate locations cannot be found. For now, the President has asked for a review of his options, which appear to be very limited unless Congress shifts its stance, which now also seems unlikely.
Little about this deeply tragic Catch-22 scenario makes sense. The United States continues to incarcerate, in increasingly harsh conditions and without trial or hope of release, dozens of individuals it has already formally decided pose no threat. Meanwhile, legislators will neither allow the detainees’ transfer nor incarceration in the United States. This situation violates not only international law, but also fundamental tenets of United States law and human dignity. The Guantánamo facility was born of cynicism and fear and it remains open for exactly the same reasons. The President is right that it represents a continuing and toxic stain and should be closed. One may only hope a path to do so can be found. Any other course will continue to bring profound shame and dishonor to the nation.