The restraining chair and forced feeding apparatus on display in an empty room of the detainee hospital in Guantanamo Bay, Cuba.
Lately Obama has tried speaking the language Republicans best understand—spending—by pointing out that each inmate at Gitmo costs $800,000 per year to house, for a total of about $150 million per year in operations. But when it comes to closing Gitmo, Smith says, many of the Republicans whose support Obama would need to approve transfers to U.S. prisons have boxed themselves in politically. House Speaker John Boehner, for instance, has called the prison a “world-class facility” and in 2010 said he wouldn’t vote to close it “if you put a gun to my head.”
The broader themes of Obama’s speech may not have helped the Guantánamo cause either. Far from agreeing with the President’s talk of a severely weakened al-Qaeda and his aspiration to wind down the war on terrorism, some Republicans accused him of complacency and retreat. Newt Gingrich called Obama’s vision “breathtakingly, stunningly naive.” Such talk is hardly the groundwork for a new spirit of cooperation.
Some Problems Have No Solution
Even assuming that the president can close Gitmo by resettling some detainees in other countries and bringing the rest to trials and prisons in the U.S., a major problem will remain: What to do with the 48 detainees who can’t be tried or released for fear that they will return to the “battlefield” of the war on terrorism? After all, holding prisoners without charges would seem to violate the Constitution’s fundamental habeas corpus guarantee. Obama doesn’t claim to have a clear answer, and his speech punted the question. He said only that “once we commit to a process of closing [Guantánamo], I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”
(MORE: What to Do with Gitmo Detainees: No Easy Solutions)
For now, Obama deals with this legal equivalent of radioactive waste by treating those inmates as prisoners of war. In March 2009, Obama’s lawyers filed a legal brief justifying detention of Gitmo detainees under the laws of war—in this case the war on al-Qaeda, made official by Congress’s September 2001 Authorization for the Use of Military Force (AUMF), which allowed for the invasion of Afghanistan and other counterterrorism efforts. Ironically, “while it decries Guantánamo as contrary to American values, the Obama Administration has convinced courts of its legal validity,” says Matthew Waxman, a former Bush detainee policy official now at Columbia Law School.
Rather than see Obama stretch that validity in new directions, one prominent human rights lawyer has actually argued for keeping Gitmo open. Closing it now “would do more harm than good,” human rights lawyer and Georgetown law professor Jennifer Daskal wrote in a January New York Times op-ed, because it would mean simply opening up a similar camp in the U.S., thereby “setting a precedent and creating a facility readily available to future Presidents wanting to rid themselves of a range of potentially dangerous actors.”
According to this vision, Gitmo would close when the war on terrorism is finally considered over. Lawyers for detainees might argue that should happen once the U.S.’s lead combat role in Afghanistan ends in late 2014, for instance. Obama also says he’d like Congress to revisit the AUMF, perhaps to narrow its scope or even to declare the war over. “Usually if you’re holding prisoners of war, you release them at the end of hostilities,” says C. Dixon Osburn of Human Rights First.
But at a recent Senate hearing on the AUMF, a top Pentagon official testified that the war on al-Qaeda could last 10 to 20 more years. Some Republicans, including Senator John McCain, have suggested that the law should be broadened, not narrowed or repealed.
Rhetoric about the founders aside, it’s hard to imagine Obama’s releasing trained al-Qaeda members who have not renounced terrorism into the wild, as it were. “The Administration’s view seems to be that so long as it’s only a small number of very dangerous al-Qaeda terrorists, it is legitimate to hold them without trial,” Waxman says. Obama would prefer not to hold them in the prison that stains America’s international reputation. But he may find the moral high ground he seeks is simply out of his reach.
MORE: A Brief History of Gitmo