Following the 9/11 terrorist attacks, President Bush maintained we were at war, not just with al Qaeda, but with terrorists around the world as we were engaged in a “global war on terror.” Although Congress never formally declared war, the Bush administration asserted its authority to use extraordinary powers not applicable in peacetime to indefinitely imprison any person deemed to be an “enemy combatant.” As we now know, this resulted in hundreds of individuals being picked up worldwide and shipped off to “Gitmo” where they were out of reach of the justice system and were detained without the rights traditionally afforded to either prisoners of war or civilian terrorism suspects. Many detainees were, or have been, imprisoned for years, others have been subjected to “enhanced interrogation techniques” (better known as torture) and all have been denied due process.
Why then has closing this prison proven so difficult? While Congress bears much responsibility, President Obama also shares considerable culpability. In issuing his executive order, the president never made clear his position on continuing to detain individuals indefinitely without a trial, and whether military commissions or federal courts would be used. In May 2009, the administration announced it would use military commissions for some detainees, but others would continue to be indefinitely held. In June, Congress barred the transfer of detainees into the U.S. except for prosecution, but by January 2011, with the administration having no clear plan in place for civilian trials, Congress passed and the president signed a provision restricting all transfers to the U.S., even for prosecution. Finally, the president signed the 2012 National Defense Authorization Act on New Year’s Eve which includes a provision allowing for the indefinite detention of captives without a trial.
Anthony D. Romero, executive director of the American Civil Liberties Union, highlights three actions President Obama could’ve taken that would’ve likely expedited Guantánamo’s closing. First, the president had the power to transfer prisoners to the U.S. for prosecution during the first two years of his term, but since his executive order called for a one year time-line, no action was taken. Second, when the January 2011 transfer ban went into effect, it only applied to the use of Defense Department funds. Justice department funds could’ve been used or the president could’ve vetoed the transfer provision. Third, the president didn’t stand behind the attorney general’s decision to prosecute 9/11 suspects in federal courts, thus allowing Congress and other elected officials to undermine the attorney general’s authority.
Although 779 detainees have passed through Guantánamo (including 12 children), today only 171 prisoners remain. Eighty nine of those have been cleared for release, but their transfer has been blocked by the 2012 Defense Authorization Act. There’s not enough evidence to prosecute 46 others, but the administration says they’re too dangerous to release. Only 36 captives actually await trial on charges. According to government statistics, just eight percent of those held at the facility were actually al Qaeda fighters.
Guantánamo continues to be a blight tarnishing the American values and rule of law we strive to export to other less democratic countries around the world. Keeping it open doesn’t improve our safety and the failure of two administrations and Congress to make the tough political and security decisions necessary to close it only undermines our international prestige. President Obama should show some strong leadership and make every effort to close the facility sooner rather than later.
Ken Lynn is a retired USAF colonel and is an adjunct online instructor with the USAF Air University.