End 14 Years Of Injustice

Why We Have Cautious Optimism Regarding President Obama's Plans for Guantánamo

Protestors from the campaigning group Witness Against Torture call for the closure of Guantánamo outside the White House on the 11th anniversary of the opening of the prison, on January 11, 2013 (Photo: Andy Worthington via Flickr).

By Andy Worthington

Here at "Close Guantánamo," we are cautiously optimistic about the release of prisoners in the months to come, following promises made by President Obama in a major speech on national security on Thursday.

On Guantánamo, the President made three particular promises.

He said, "I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries."

We've all heard fine words from the President before -- when he was running for President, and when he took office in January 2009. On his second day in office, of course, he issued an executive order in which he promised to close Guantánamo within a year. Then, of course, uncomfortable realities arose. The President encountered political opposition, from Republicans and from members of his own party. His close advisers told him the effort to close the prison was not electorally worth the expenditure of political capital.

The President then blocked the release of cleared prisoners to the U.S., who could not be safely repatriated (a group of Uighur prisoners, wrongly imprisoned Muslims from China's Xinjiang province), and then had to put up with humiliations in Congress -- a ban on transferring prisoners to the U.S. mainland, even to face trials, a ban on buying a facility on the U.S. mainland to replace Guantánamo, and, in 2011 and 2012, bans on releasing prisoners to countries with any alleged "recidivists," and a requirement that, if any prisoner was to be released, the Secretary of Defense would have to certify that he would not be able to engage in terrorism.

That, of course, was impossible, but the President had personally raised another huge obstacle to add to those introduced by lawmakers. In January 2010, after a Nigerian man, recruited in Yemen, tried and failed to blow up a plane bound for the U.S. with a bomb in his underwear, President Obama issued a moratorium on releasing any Yemeni prisoners from Guantánamo, even though an inter-agency task force that he had established when he took office had recommended releasing 58 Yemeni prisoners.

Of the 166 men currently held at Guantánamo, 86 were cleared for release by the task force, and 56 of those men are Yemenis. Just one Yemeni prisoner has been released since President Obama issued his moratorium, and one other died at Guantánamo last September, eight years after he was first told that the U.S. government had no desire to continue holding him.

In his speech on Thursday, President Obama's announcement that he has lifted his moratorium was hugely significant, as was his announcement that he is appointing a "a new, senior envoy" for Guantánamo, and will resume the release of cleared prisoners, both the Yemenis and those of other nationalities who are still held (see here for further details).

To do so, he may have to use, for the first time, a waiver in the legislation introduced by lawmakers to prevent the release of prisoners, which Sen. Carl Levin, the chair of the Senate Armed Services Committee recently reminded the President he had been instrumental in introducing.

As Sen. Levin explained in a letter to the President on May 9, "I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition."

Given previous fine words from the President, followed by inaction, it is understandable that some people will think that, despite these developments, nothing will actually happen. However, we believe that the hunger strikers, by risking their lives, have woken the world to their plight, and that it cannot be brushed aside.

Across the world, the media has been paying attention to Guantánamo more than at any other time since President Bush's second term, when he too was subjected to criticism that he could not ignore. In the last few months, in addition to the criticism from Sen. Levin, criticism has also come from Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, as well as from the United Nations, the International Committee of the Red Cross, and the European Parliament.

In addition, there have been critical editorials in the New York Times and the Washington Post, and op-eds written by prisoners in the New York Times and the Observer, and nearly a million people have signed petitions calling for the release of prisoners and the closure of the prison.

On Friday, a valuable perspective was provided for the long-running column "Washington Wire," in the Wall Street Journal, by Gerald F. Seib. In the article, entitled, "Why Odds of Closing Guantánamo May Be Better Now," Seib noted that, despite problems to date "stemming from a lack of good alternatives, resistance to conducting terror trials in the U.S. and a wall of Republican opposition," administration officials now believe that three particular factors "make it more likely the call for closure can succeed this time."

The first, which is significant, is the "improved situation in Yemen." Seib notes that the administration "stopped transfers to Yemen in its first term in part because the government of then-President Ali Abdullah Saleh was so shaky there was little reason to think Yemen could control suspect extremists sent back to its care. Now, though, Mr. Saleh has given way to President Abdrabbuh Mansour Hadi, who seems to be strengthening his control of the country and its institutions."

Seib also notes that the hunger strike has "changed attitudes," and that, as well as increasing pressure on the administration, it has also "had an impact on members of Congress who had been satisfied with the status quo."

Related is the third point, which Seib described as a "growing recognition among Republican senators that the situation isn’t sustainable in the long run." He noted that Sen. John McCain had "pushed hard at an Armed Services Committee hearing this week for a plan to close the detention center," arguing that it represents “an image problem, a reputation problem” for the U.S. around the world.

Crucially, Seib added, "Others feel the same way and argue in private that holding detainees for an indeterminate period without formal judicial proceedings violates American principles, though they are less vocal about it."

The change of attitudes alone won't close Guantánamo, of course, but it does provide reasons for our cautious optimism. All of us who want to see Guantánamo closed need to keep working to make sure that the administration knows we are watching, and that we need prisoners to be released as soon as possible.

Beyond releasing the 86 cleared prisoners, there are obviously much bigger problems in addressing what is appropriate for the 80 other prisoners.

46 of them were designated for indefinite detention without charge or trial by President Obama in an executive order issued two years ago, on the basis that they are "too dangerous to release," but that the evidence against them cannot be used in a court. That makes the supposed evidence worthless, but the men have no chance to prove it. Periodic reviews promised by the President two years ago have not taken place, but they need to do so, and they also need to encompass the 30 or so other men who were recommended for trials by the task force. Only seven men currently face changes, and we believe that only around two dozen of the remaining 166 prisoners can ever be charged.

The rest need to be released, and if the review process is the best way to achieve this, then, as we have stated before, we are happy to offer our services to provide detailed, objective information about why the evidence is, in general, fundamentally untrustworthy. We will also happily join with other parties to point out that the very rationale for the wartime detentions at Guantánamo is no longer justifiable, and how the withdrawal of troops from Afghanistan next year will make the ongoing detention of prisoners absolutely untenable.