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How Gitmo Imprisoned Obama

by Daniel Klaidman
Photo illustration by Minhaj Ahmed Rafi (Jewel Samad—AFP (Obama), Tom Pennington—AFP (Flag), Shane T. McCoy—AFP (Prisoner), No credit (Barbed wire))

Photo illustration by Minhaj Ahmed Rafi (Jewel Samad—AFP (Obama), Tom Pennington—AFP (Flag), Shane T. McCoy—AFP (Prisoner), No credit (Barbed wire))

Five years later, Guantánamo remains open. It is the president’s biggest failure. Now he tries to close it, again.

[dropcap]I[/dropcap]n late April, U.S. President Barack Obama was asked to comment on the hunger strike unfolding among prisoners at Guantánamo Bay. Was he surprised that the 100 or so prisoners who were participating in the protest preferred death over indefinite confinement? Tapping his finger on the lectern and speaking in a clipped cadence, Obama did not mince words in response. “Guantánamo is not necessary to keep us safe,” he said. “It is expensive. It is inefficient … It is a recruitment tool for extremists. It needs to be closed.” The president then pledged to rededicate himself to the challenge of shuttering the prison. “I’m going to go back at this,” he bluntly resolved.

Obama’s words were nothing short of shocking. It had been a long time since his efforts to close Guantánamo’s Gitmo prison had collapsed—done in by congressional obstruction, by political realities, and even, to an extent, by Obama himself. During the intervening period, there had been little evidence that Obama cared to return to the issue. He hadn’t uttered the word Guantánamo in a State of the Union address since 2009. Nor was there even anybody in charge of quarterbacking the initiative. The prevailing attitude toward Gitmo within the administration seemed to be “out of sight, out of mind.” Like the 166 prisoners languishing in the facility, the president’s policy seemed entirely stuck in limbo.

Now Obama, with no public warning, had suddenly committed himself to making another run at what had thus far proved to be the most Sisyphean of all his policy goals. Could he possibly have meant what he said? Was he really ready to restart this particular political fight?

In a word, yes. According to three administration sources, the president’s sudden rhetorical plunge back into the Guantánamo morass reflected a calculated, highly personal decision—one borne of both frustration at his team and a measure of personal regret about his failure to solve the problem sooner.

It all dates to March, when Obama started seeing disturbing reports about the hunger strike at the prison. Twice daily, detainees were being shackled at the wrists and ankles to restraint chairs and force-fed by Navy medics, a process that involved snaking long tubes through their nasal passages, down the backs of their throats, and into their stomachs to pump in cans of Ensure, a nutritional supplement. The painful procedure often provokes gagging and vomiting.

Meanwhile, John Kelly, the Marine general overseeing Guantánamo as head of the Southern Command, made a stunning admission before a congressional committee on March 20: he attributed the hunger strike directly to the perception that Obama, after promising to close the prison, had given up, effectively abandoning the detainees. “They were devastated when the president backed off—at least their perception—of closing the facility,” he testified.

According to one presidential adviser, Obama, troubled by what he was hearing, began digging back into his policy to see where things stood and what else could be done. What followed was a flurry of activity: multiple high-level White House meetings and considerable scrambling within the national-security bureaucracy surrounding the issue of closing Gitmo. (Shutting down the facility would likely entail freeing some prisoners, transferring some to jails in other countries, prosecuting some, and moving still others—those being held indefinitely—to U.S. prisons.) To rally public support for this effort, Obama plans to give a major speech soon partly devoted to the subject. (He’ll also talk about drones.)

“Obama has no illusions about how hard this is,” says a former administration official who has worked on Guantánamo matters. “But he also knows that he will own this bit of history just as much as George W. Bush does”—if, that is, he doesn’t make substantial progress toward fixing it.

[dropcap]T[/dropcap]hroughout his presidency, pleas for action on Guantánamo from civil libertarians, friends, and top advisers have reportedly tugged at Obama’s conscience. But politics and a weary fatalism subsumed action nearly every time.

One recent plea, two sources said, came from Hillary Clinton, who, just before she left office in January 2013, sent a two-page confidential memo to Obama about Guantánamo. Clinton had, during her years in the administration, occasionally jumped into the fray to push her colleagues to do more on the issue. One of those occasions was at a White House meeting of Obama’s national-security principals in August 2010. “We are throwing the president’s commitment to close Guantánamo into the trash bin,” she chastised White House aides, according to three participants in the meeting. “We are doing him a disservice by not working harder on this.”

But at the end of the day, Clinton had little leverage to get the White House to act. Now, in one of her last moves as secretary of State, she was making a final effort to prod her boss to do more. Her memo was replete with practical suggestions for moving ahead on Gitmo. Chief among them: Obama needed to appoint a high-level official to be in charge of the effort, someone who had clout and proximity to the Oval Office. Further, Clinton argued that Obama could start transferring the 86 detainees who’d already been cleared for release. (Congress has imposed onerous restrictions on the administration’s ability to transfer Gitmo detainees—including a stipulation that the secretary of Defense certify that detainees sent to other countries would not engage in acts of terrorism. In her memo, Clinton pointed out that the administration could use “national-security waivers” to circumvent the restriction.)

The Clinton missive perturbed White House aides, who viewed it as an attempt to put them on the spot, according to a senior administration official. It’s unclear how Obama himself reacted to the memo; there’s no evidence that it spurred him to action. (The White House declined to comment.) But whether or not the memo played a role in changing the president’s thinking, the mere fact that Clinton felt the need to write it was noteworthy, because it suggested the degree to which Guantánamo, four years into the Obama presidency, remained an irritant for her—and for many other high-level administration officials as well.

‘[Obama] knows that he will own this bit of history just as much as George W. Bush.’

The road to that point had been long, winding, and largely counterproductive. Obama’s approach to Gitmo had begun idealistically: on his second day in office, in January 2009, he signed an executive order directing the facility to be closed in a year. A month later, at his first State of the Union address, he spoke stirringly on the issue. “There is no force in the world more powerful than America,” Obama said. “That is why I have ordered the closing of the detention facility at Guantánamo Bay, and will seek swift and certain justice for captured terrorists—because living our values doesn’t make us weaker, it makes us safe and it makes us stronger.”

But one of his very first tactical moves on Guantánamo backfired spectacularly. Obama’s plan to bring to the United States a handful of detainees—Chinese Uighurs who were cleared by the courts—caused a political furor. Obama pulled the plug on the plan, and Congress soon began passing measures to restrict transfers out of Gitmo. For Obama’s political advisers, the episode demonstrated that the toxic politics of terrorism could overwhelm the administration’s domestic agenda; for civil libertarians, it was an ominous sign that Obama lacked the political will to aggressively engage Congress on one of their core concerns. Even some of Obama’s top national-security aides were frustrated with the White House’s timid approach toward Congress. John Brennan—then Obama’s counterterrorism czar, now his CIA chief—believed the administration needed to show more backbone in its dealings with Congress, according to a source who spoke with him at the time. Brennan’s outrage was fueled by the knowledge that many detainees, who were still at Guantánamo after years of detention, had no record of terrorism.

A few weeks after the Uighur debacle, Obama made his first attempt to save his faltering Guantánamo policy: in a sweeping address at the National Archives, he laid out a detailed plan for closing the prison. But in the end, however eloquent, it was only a speech. It did not, in any measurable way, push the policy forward.

Things only got worse from there. On Christmas Day 2009, the so-called underwear bomber attempted to bring down a plane over Detroit—a plot that was directed by Al Qaeda’s Yemen affiliate. The frightening near-miss took a powerful psychic toll on the White House, which was still dogged by the perception that Democrats were weak on national security. Obama became convinced that he could not send any of the nearly 100 Yemeni detainees at Gitmo back to their home country, for fear they would link up with extremists and begin plotting attacks against America. Suddenly, the fate of the Yemenis was another giant obstacle to closing the prison.

Then came the unraveling of Attorney-General Eric Holder’s plans to try some Gitmo detainees, including 9/11 mastermind Khalid Sheikh Mohammed, in New York. Obama had initially backed Holder’s decision. But when it blew up in Congress, he seemed to equivocate. His own chief of staff, Rahm Emanuel, actually worked behind the scenes with Republican senators to undermine Holder’s initiative, according to multiple sources with knowledge of the episode. Once the plan cratered, lawmakers smelled blood. They began passing ever more restrictive legislation tying the administration’s hands on Guantánamo.

Michelle Shephard—Toronto Star/AFP

Michelle Shephard—Toronto Star/AFP

For much of the past few years, without any signal that Obama was going to fight on Gitmo, the policy drifted. Daniel Fried, the veteran State Department official in charge of resettling detainees, was transferred to a different ­position. Even the steps Obama took to move things forward were of a highly limited nature. One of those steps came in March 2011, when Obama issued an executive order designed to solve a thorny problem. Forty-eight of the detainees could not be prosecuted, either for lack of evidence or because they had been tortured—yet they were nonetheless considered too dangerous to release. This meant they had to be held in indefinite detention, a prospect that troubled Obama. His compromise, issued via executive order, was to set up Periodic Review Boards—administrative bodies that would allow such prisoners to challenge their incarceration, including by presenting new evidence.

It was hardly ideal from a civil-liberties perspective. Indeed, Obama agonized over the proposal, even telling his top security advisers at a July 2009 meeting that he wouldn’t sign off on it, according to three participants in the discussion. Obama was worried about the precedent he’d be setting by embracing a regime of detention without trial, likening it to leaving behind a “loaded weapon” for future presidents. But while he was effectively the last holdout in his administration on the matter, he ultimately saw no alternative. At least the review boards would give detainees some limited version of due process—and the possibility, however remote, of being transferred or released.

[dropcap]F[/dropcap]lash forward to 2013. As Obama, concerned about the hunger strike at Gitmo, began looking into the issue, he discovered something that, according to two senior administration officials, infuriated him: two years after his March 2011 executive order, the Periodic Review Boards had not yet gotten off the ground, despite the fact that the order had called for them to be up and running within a year. Some Obama officials shifted blame to the CIA, which they said had slowed down the process by voicing objections to sharing its sensitive intelligence with defense lawyers representing the suspected terrorists. One source directly involved in the controversy says CIA officials were balking at sharing any more information about the agency’s infamous detention and interrogation program—a subject that would have likely come up during review-board hearings. (A U.S. intelligence official disputed that the CIA was responsible for the delay: “It really is unfair to scapegoat the CIA, which has been supportive of the process. As with any complex interagency matter, many have equities at play.”)

As word of Obama’s reaction filtered back through the national-security agencies, a new effort was launched to resolve the interagency disputes over the review boards. And a frustrated Obama directed his staff to redouble its efforts to identify creative solutions to the Guantánamo conundrum, including measures he could take unilaterally. Today, many of the options on the table are the same ones that were spelled out in the Clinton memo several months ago.

But the reality, of course, is that Obama cannot close Gitmo by himself. He’s going to need Congress to sign off. And therein lies the central challenge. To date, the public’s emotional response to terrorism has made Gitmo a ripe target for political demagoguery on Capitol Hill. So how to cajole self-interested lawmakers to take a major political risk on behalf of 166 men who have little or no constituency? Obama’s answer seems to be that he is going to make his case to the public.

Instead of giving up, Obama has shifted to a long-road strategy in the hope that over time the politics will turn his way.

In the coming days, Obama plans to address both Guantánamo and drones—another festering, controversial element of the administration’s national-security agenda—in a broad “framing” speech that will try to knit together an overarching approach to counterterrorism. In the speech, Obama plans to lay out a legal framework for the administration’s evolving strategies on targeting, detention, and prosecution, according to two senior officials who have been briefed on its contents. The delicate process of putting together such a major presidential statement has apparently taken months and involved arduous interagency wrangling. It had been scheduled for last month but was then abruptly rescheduled. Sources say Obama wants to use the speech to take stock of the war on terror in the wake of such seminal events as the killing of Osama bin Laden and the looming withdrawal of U.S. forces from Afghanistan. In addition, Obama wants to convey to the public a more coherent and nuanced understanding of the decentralized radical Islamist groups that have emerged as a result of the pressure the U.S. has placed on Al Qaeda’s core organization, as well as from the turmoil of the Arab Spring. (In the wake of the Boston Marathon bombings, Obama will also address the evolving threat of self-radicalization and lone wolves.)

The speech could well serve as the White House’s opening shot in its new campaign to solve the Guantánamo riddle. But Obama’s critics will be skeptical—likely branding it another attempt to bend the arc of history with mere eloquence. It would fit a pattern on rule-of-law issues, they say, in which Obama’s lofty rhetoric is rarely followed by resolute action—especially when it comes to standing up to Congress. According to this narrative, Obama expresses righteous indignation, but then is persuaded by his political team that the time is not right to fight. Or he threatens to veto legislation that shackles him on Guantánamo, but then fails to go through with the threat. The dynamic, critics say, creates a self-fulfilling cycle that emboldens congressional Republicans and weakens the president.

There’s plenty of evidence to support this interpretation of events. On the other hand, it also arguably downplays the blunt reality that any president needs to prioritize his policy initiatives. When Team Obama began its bid to close Guantánamo in 2009, it was still trying to stave off economic depression, save the banking system, and bail out the auto industry. Later, Obama chose healthcare reform as his signature domestic initiative—an all-consuming political struggle that left the White House with little bandwidth to fight on multiple other fronts. Something had to give. For Obama, it was Gitmo.

His supporters also argue that instead of giving up, Obama has shifted to a long-road strategy, which sometimes requires backing down from epic confrontations in the hope that over time the politics will turn his way. In at least one area—prosecuting suspected terrorists in civilian courts—that approach may be working. Though Obama caved to criticism and backed down on trying Khalid Sheikh Mohammed in court back in 2011, he subsequently decided to have a string of captured terrorists tried in the civilian justice system, the latest being Dzhokhar Tsarnaev, the surviving Boston bomber. Over time, the criticism has dwindled to barely a peep.

Even some civil libertarians—Obama’s fiercest critics on Guantánamo—are optimistic that he has built up the resolve to finally fix the situation. “I am more optimistic this time around, because he’s no longer naive about the politics,” says David Cole, a professor of constitutional law and national security at Georgetown. “He’s lived through four years of stalemate on this, so the fact that he was nonetheless as strong and passionate about his concerns suggests to me that he really has made a renewed commitment to take it on.”

Gitmo does appear—for now at least—to have Obama’s attention again. Indeed, if there’s a silver lining in the events of the past four years for civil libertarians, it’s that, while Obama hasn’t figured out a way to close Gitmo, he also hasn’t figured out a way, in his own mind, to let the issue go.

From our May 31, 2013, issue; How Gitmo Imprisoned Obama.

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