The Politics of Guantánamo

A hunger strike by prisoners and President Obama’s remarks at a press conference last week have revived interest in the question of Guantánamo, the U.S. naval base in Cuba where 166 men (down from the original 779) have been held for up to eleven years in connection with the war on terrorism. Guantánamo (its nickname, Gitmo, is derived from the official abbreviation for the naval base, GTMO) has been a symbol of Bush era policies and has undermined the United States’ standing around the world. Obama restated his previous objective to close the site.

In making his case, the president cited the need to engage the public and the Congress. While Congress has imposed several obstacles to resolving the Guantánamo issue, a number of observers have pointed out that the president already has the power to deal with parts — not all, but parts — of the Guantánamo issue. This is technically true, but it misrepresents the political character of the Guantánamo issue and the nature of today’s heightened political atmosphere.

First, it should be stated that the name Guantánamo encapsulates a number of separate issues that are often conflated and confused. One of these is the mere location. This has taken on considerable symbolic significance because the place has become identified with a set of policies and because it was selected as a location where (the relevant decision makers originally assumed) U.S. courts would not have jurisdiction. Even though, in terms of substance, this is probably the least important aspect of the question, it has been fully wrapped up in the politics. Four years ago, when Obama proposed moving the prison population to a maximum-security facility in Illinois, Congress formally forbade the use of government funds to relocate Guantánamo inmates to the mainland.

The second aspect has to do with the treatment of prisoners at Guantánamo and the nature of the courts established to try them. Improvement in this area is substantively more important than the physical location of the facility. Advances have been made in both these areas over the years, although issues remain.

A third aspect concerns the question of indefinite detention. This remains unresolved, and it is unclear that efforts are being made to address it. Of the 166 current detainees, only seven have been convicted by a military commission; 36 have been designated for trial but have yet to be tried; 86 (a slight majority) were cleared for release in 2009 but have not been released; and 46 have simply been designated for indefinite detention without any prospect of being charged, tried or released. This last category, anomalous in the extreme, includes people who have committed no crime or for whom there is no admissible evidence of a crime, but who are considered too dangerous to release, presumably because they are so angered by their incarceration that they are expected to become terrorists if they ever get the opportunity. There is no provision in the normal U.S. penal system for holding people indefinitely without charge or trial. Technically, they are being held under the military rule whereby prisoners of war are disarmed and kept in detention until the end of hostilities, and even that could become questionable when U.S. forces withdraw from Afghanistan at the end of next year. (Officials are just beginning to grapple with the question of how and when to declare the war on terror over.) Jennifer Daskal, a human rights attorney, has recently suggested that it might be better to keep Guantánamo open for the time being (reversing her previous position on closing the facility) rather than to introduce the precedent of holding people in indefinite detention in the regular federal prison system.

The reason for the inaction with regard to the fate of the Guantánamo inmates appears to be tied to the political dynamics surrounding the site and the war on terror. A pattern evolved over the course of years. The Bush administration opened the prison facility in 2002 as a site outside of normal U.S. jurisdiction and also, owing to a fluke of history, effectively outside the jurisdiction of Cuba, the country it is in. The administration declared the inmates “unlawful enemy combatants” and asserted that the designation meant they were outside the purview of the Geneva Conventions. Military commissions were established with unique, and highly controversial, rules, procedures, and standards of evidence, such that military prosecutors were extremely uncomfortable with them. Lawyers for the detainees repeatedly took their objections to the system to the Supreme Court, and the Court repeatedly shot down the administration’s ad hoc arrangements. The Court, however, then deferred to Congress, which in turn deferred to the president; Congress took much—not all, but much—of what the Supreme Court had struck down and made it legal retroactively.

When Obama became president, the flow of deference was reversed, with the president deferring to repeated moves by Congress to obstruct his efforts to close the facility. (While Republicans generally took the lead, Democrats have participated in some of these moves as well.) The president was barred from relocating inmates to the U.S. mainland, from trying them in federal courts, and from moving them to countries deemed too unstable. The president, himself, barred the release of inmates to Yemen after the “underwear bomber” tried to blow up an airliner over Detroit on Christmas Day, 2009. (The bomber was from Nigeria, but he had been recruited and trained by a group in Yemen, which subsequently became less stable as well. The majority of Guantánamo inmates who are designated for release but still in custody are from Yemen.)

While the direction of deference had been reversed, however, an underlying theme remained the same. Just about everyone, but especially Congress, has been deferring to a fairly crude understanding of national-security requirements, law, and the Constitution, in other words, to their view of the average American voter. Decisions have been made less on the basis of justice or national security than out of fear of retaliation by an electorate with little regard for legal niceties, still anxious in the aftermath of 9/11, and on some issues, easily manipulated. This may not be a profile in courage, but neither is it an unreal concern.

Obama, no doubt, has been especially sensitive to this because of the Republicans’ recent proclivity to take advantage of such situations. When a party condemns you simultaneously for (1) making cuts to Medicare and (2) refusing to make “necessary adjustments to entitlements” (defined as cuts to Medicare), as Romney did last fall, that party is not going to shrink before the opportunity to denounce you for alleged efforts to free terrorists to attack the United States, even if the inmates in question were to be turned over to another country’s prison system. Moreover, such a charge would find immediate resonance in a sizable part of the public. Obama hinted at this concern during his press conference, when he said, “It’s easy to demagogue the issue. That’s what happened the first time this came up [in 2009].” That concern presumably lies behind his lack of action and his stated need to explain the situation to the public and engage with Congress — thus making Congress a partner in any potentially controversial decision — in order to do something that he technically has the right to do already.