At his news conference this week, President Obama made a powerful plea for ending the humanitarian and diplomatic disaster created by the continued detention of more than 160 prisoners at Guantanamo Bay, more than 100 of whom are engaged in a hunger strike that necessitated the dispatch of an emergency medical team.
The problem is that Obama has contributed to the crisis by acquiescing in the congressional obstruction of his promise to close the facility. We hope he is serious when he says he will now "re-engage with Congress that this is not in the best interest of the American people." "The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are," Obama said. "It is contrary to our interests and needs to stop." The president repeated his familiar observation that the existence of Guantanamo is a "recruitment tool" for extremists. Those are eloquent words, but if they are to be translated into action, Obama will need to alter his own behavior.
It has been more than four years since the newly inaugurated president issued an executive order promising, "promptly to close detention facilities at Guantanamo." Yet the prison remains open. Of the prisoners remaining, about half have been cleared for release but continue to be detained because of congressional opposition to their repatriation to Yemen and other countries whose authorities might not be able to prevent them from engaging in terrorism. Congress also has used its authority to prevent President Obama from transferring detainees to the U.S. mainland, a factor in the decision to try Khalid Shaikh Mohammed and other alleged 9/11 conspirators before a military commission rather than in civilian courts.
However, Congress isn't entirely to blame. The Supreme Court, which in 2008 ruled that detainees at Guantanamo had a constitutional right to challenge their confinement by seeking writs of habeas corpus, stood by while a federal appeals court eviscerated that landmark ruling. For his part, Obama has refused to expend political capital on closing Guantanamo. Rather than veto the defense authorization bills that have limited his ability to transfer inmates, he has signed them while raising questions about whether they intruded on his constitutional authority.
At the very least, President Obama could take the advice of several progressives in Congress and renew his administration’s efforts to transfer the 86 inmates cleared for release three years ago by an interagency task force from Guantanamo. He should do so, ideally with congressional cooperation but unilaterally if necessary.
Guantanamo is a stain on this nation's reputation, not because of where it is located but because the men held captive there are languishing in a legal limbo, which would be just as hopeless if they were transplanted to American soil. Notwithstanding Obama's comments about the un-American nature of indefinite detention, more than 40 inmates are being held without the prospect of even a military trial. As he "re-engages" with Congress, the president should also reconsider his own decision to deny those detainees their day in court.