Last Friday, in his first press conference since May, President Obama was concerned primarily with the economy, but also found time to answer a couple of questions about Guantánamo that were put to him by Ann Compton of ABC News Radio. For the most part, the media overlooked this section of the press conference, focusing only on the President’s admission that his administration had “fallen short” on the promised closure of Guantánamo by January this year, but his comments as a whole deserve analysis, because, behind this particular soundbite, he mostly tiptoed around the reasons for this failure. Below I reproduce Ann Compton’s questions, Obama’s answers, and my own commentary on the significance of his remarks.
Ann Compton: Mr. President, what does it say about the status of Americans’ system of justice when so many of those who are thought to be plotters for September 11th or accused of — suspected terrorists — are still awaiting any kind of trial? Why are you still convinced that a civilian trial is correct for Khalid Sheikh Mohammed? And why has that stalled? And will Guantánamo remain open for another year?
President Obama: Well, you know, we have succeeded on delivering a lot of campaign promises that we made. One where we’ve fallen short is closing Guantánamo. I wanted to close it sooner. We have missed that deadline. It’s not for lack of trying. It’s because the politics of it are difficult.
My analysis: This is partly an understatement, but it is also somewhat evasive. Certainly, lawmakers — of both parties — must bear the blame for refusing to endorse the President’s plan to close Guantánamo by, essentially, moving it to a new location in Illinois, but this was not without its own problems – primarily, that those regarded as too dangerous to release, but against whom there is insufficient evidence to press charges, would be held alongside those designated for trials, thereby enshrining President Bush’s policy of indefinite detention without charge or trial on the US mainland.
President Obama’s shocking decision to endorse indefinite detention without charge or trial for some prisoners (whether at Guantánamo or on the US mainland) first surfaced last May, when he stated publicly that “preventive detention” was back on the table (along with the reviled Military Commission trial system), and was confirmed in January this year, when his interagency Guantánamo Review Task Force recommended that 35 prisoners should be tried, 48 should be held without charge or trial, and the rest should be released.
In addition, lawmakers must share the blame with the President for legislating to prevent the transfer of any prisoner to the US mainland for any reason other than to face trials. This scuppered any possibility of rehousing cleared prisoners in the US, who cannot be repatriated because of fears that they will be tortured in their home countries. As a result, it has made the job of finding new homes for these men in third countries more difficult, because of the correct perception that the US is being hypocritical, asking others to address problems for which the US itself refuses to accept responsibility.
However, it should not be forgotten that Obama allowed the Justice Department to oppose the court-ordered release of 17 Uighurs (Muslims from China’s oppressed Xinjiang province) into the US in February 2009, and that three months later he pulled the plug on a plan developed by White House Counsel Greg Craig, which was close to fruition, and involved bringing a few of the Uighurs to live in the US, to pave the way for further releases.
And finally, President Obama must bear the blame for capitulating to hysteria, in the wake of the failed Christmas Day plane bombing last year, by declaring a moratorium on the release of any cleared prisoners to Yemen (whether cleared by the Task Force, by the US courts following their habeas corpus petitions, or both), simply because the would-be bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen. This is nothing less than guilt by nationality — and enormously insulting to the Yemeni people as a whole — and the President should have been bold enough to resist it.
President Obama: Now, I am absolutely convinced that the American justice system is strong enough that we should be able to convict people who murdered innocent Americans, who carried out terrorist attacks against us. We should be able to lock them up and make sure that they don’t see the light of day.
We can do that. We’ve done it before. We’ve got people who engaged in terrorist attacks who are in our prisons — maximum-security prisons all across the country. But, you know, this is an issue that has generated a lot of political rhetoric. And people — understandably, you know — are fearful.
But one of the things that I think is worth reflecting on after 9/11 is, you know, this country is so resilient; we are so tough. We can’t be frightened by a handful of people who are trying to do us harm, especially when we’ve captured them and we’ve got the goods on them.
My analysis: The resistance to Attorney General Eric Holder’s announcement in November 2009 that the five men accused of involvement in the 9/11 attacks (including Khalid Sheikh Mohammed) would face a federal court trial in New York was so severe that the administration has put off dealing with it, refusing to confirm or deny whether federal court trials will proceed, whether they will be in New York or elsewhere, or even whether the trials will be scrapped, and the men will face trials by Military Commission instead.
In this passage, the President inadvertently revealed how sensitive the topic of federal court trials is, refusing to refer directly to the courts, and noting how the United States “should be able to convict people who murdered innocent Americans,” and “should be able to lock them up” (my italics), even though the men in question have been held without charge or trial for up to eight and a half years. In addition, his insecurity can be seen in his assurance that “we’ve got the goods on them,” in which, essentially, he pre-judges their guilt (as he and Attorney General Eric Holder did when they were first charged), as an attempt to assure critics that the federal court system will not somehow lead to their release.
President Obama: So, you know, I’ve also said that there are going to be circumstances where a military tribunal may be appropriate. And the reason for that is — and I’ll just give a specific example. There may be situations in which somebody was captured in theater, is now in Guantánamo; it’s very hard to piece together a chain of evidence that would meet some of the evidentiary standards that would be required in an Article III court, but we know that this person is guilty. There’s sufficient evidence to bring about a conviction. So what I’ve said is, you know, the military commission system that we set up, where appropriate, for certain individuals that it would be difficult to try in Article III courts, for a range of reasons, we can reform that system so that it meets the highest standards of due process and prosecute them there.
And so I’m prepared to work with Democrats and Republicans, and we, over the course of the last year, have been in constant conversations with them about setting up a sensible system in which we are prosecuting, where appropriate, those in Article III courts; we are prosecuting others, where appropriate, through a military tribunal. And in either case, let’s put them in prisons, where our track record is, they’ve never escaped.
My analysis: Unwilling to push federal court trials to the top of the agenda, President Obama instead diverted attention to a discussion of trials by Military Commission, ignoring the fact that numerous legal experts have criticized the Commissions for being a poor substitute for federal court trials, and also for enshrining a three-tier judicial system for the Guantánamo prisoners, with federal court trials for some (when the evidence is regarded as being particularly robust), Military Commissions when the evidence is weaker, and indefinite detention without charge or trial when the evidence is too weak or compromised to be used at all Noticeably, the President cannily omitted mentioning this last point, which, understandably, has enraged everyone who opposed President Bush’s assertion that he could hold prisoners indefinitely without charge or trial.
His comment that Military Commissions are appropriate when “we know that this person is guilty” may be another example of reassuring those who fear — unjustifiably — that his administration may be less than rigorous in its appraisal of the remaining prisoners’ significance, but along the way it also dangerously undermines the presumption that suspects are innocent until proven guilty.
It also undermines the work undertaken by judges in the District Court in Washington D.C. Over the last two years, in examining the prisoners’ habeas corpus petitions, judges have ruled, in 38 out of 54 cases, that the government has failed to establish that the men in question were involved with either al-Qaeda or the Taliban. In doing so, the judges have demonstrated an ability to examine evidence objectively — involving analyzing whether or not statements were derived through torture, unreliable witnesses and intolerable levels of hearsay — that is missing from the President’s bald assertions of guilt.
It is also noticeable that, although the President finally mentioned federal court trials by name, he moved on swiftly to point out that the administration has been working with both Republicans and Democrats to resolve any difficulties, even though lawmakers have actually demonstrated a profound unwillingness to help, and, in significant numbers, support Military Commissions rather than federal court trials. The great irony here is that, in their haste to tar these men as warriors rather than as criminals, lawmakers are forgetting, or ignoring that the federal courts have an impressive track record in dealing with terrorist-related offenses, and in particular, with providing material support to terrorism, whereas the Military Commissions have been something close to an abject failure, with only four convictions throughout their long and troubled history.
Sadly, in his desire to play the Military Commissions card, the President failed to acknowledge these problems, and also failed to acknowledge that providing material support to terrorism is an invented war crime (invented by Congress in the Military Commissions Act of 2006, and maintained in the latest legislation). He also failed to acknowledge that, last summer, senior officials from the Justice Department and the Pentagon told Congress that they believed that any convictions on these charges in the Military Commissions would probably be overturned on appeal.
President Obama: And by the way, just from a purely fiscal point of view, the costs of holding folks in Guantánamo is massively higher than it is holding them in a supermax maximum security prison here in the United States.
My analysis: This is certainly true, as Carol Rosenberg explained in the Miami Herald, when she wrote, “The Pentagon reports the annual cost of running the prison camps, staffed by a variety of US military troops, at $116 million. With a current population of 176 war-on-terror detainees, that’s more than $650,000 each.” By contrast, Bureau of Prisons spokeswoman Traci Billingsley told Rosenberg that “it costs nearly $5,575 a year to keep a prisoner in federal detention,” although she added, “A Supermax prisoner’s cost might be a bit higher, because of additional security” (Note: On Monday, Bureau of Prisons spokesman Edmond Ross pointed out that the correct figure is $27,251 a year per federal prisoner).
What is unknown is whether, when dealing with the fears of terrorism that have been persistently stoked for nine years by unscrupulous lawmakers and media outlets, the American people are concerned by Guantánamo’s cost. After all, as reports on Afghanistan have recently demonstrated, with only a maximum of 100 members of al-Qaeda in Afghanistan, and 1,000 US soldiers for each al-Qaeda member at $1 million per soldier (the cost, on top of a soldier’s salary, of “getting the soldier to Afghanistan, getting his equipment to Afghanistan, and moving the soldier around once in the country”), it actually costs the US $1 billion a year for the pursuit of each al-Qaeda member.
Ann Compton: Is that all for Khalid Sheikh Mohammed? Will that trial ever happen?
President Obama: Well, I think it needs to happen. And we’re going to work with members of Congress — and this is going to have to be on a bipartisan basis — to move this forward in a way that is consistent with our standards of due process, consistent with our Constitution, consistent also with our image in the world of a country that cares about the rule of law. You can’t underestimate the impact of that.
My analysis: With this answer, the President finally admitted that he believes that the appropriate venue for trying Khalid Shiekh Mohammed and his alleged 9/11 co-conspirators is federal court, although he immediately rushed to point out, yet again, that this would involve working closely, and on a bipartisan basis, with Congress, even though, as outlined above, Congress has shown no appetite whatsoever for working with the President on this issue.
President Obama: You know, al-Qaeda operatives still cite Guantánamo as a justification for attacks against the United States — still, to this day. And you know, there’s no reason for us to give them that kind of talking point when, in fact, we can use the various mechanisms of our justice system to prosecute these folks and to make sure that they never attack us again.
My analysis: This is true, but when analyzed in conjunction with the evasions and omissions outlined above, it fails to provide any reassurance that Guantánamo will close anytime soon, thereby depriving al-Qaeda of a potent tool for recruitment. Setting a new deadline for Guantánamo’s closure would do the trick, but to do that the President would have to make promises that he would be unable to keep — both because of the seemingly implacable opposition he faces from lawmakers, and also because of his own inability to make his own case strongly enough when it really counted, in the first five months of his Presidency. Many of his problems can be traced back to the speech on national security issues that he made in May 2009, when he began distancing himself from the unwavering opposition to Bush’s policies advanced by Greg Craig, and reintroduced Military Commissions and indefinite detention without charge or trial for some of the men still held at Guantánamo.
Had he stuck to just two options — federal court trials or the release of prisoners — much of the “difficult” politics that he mentioned at the start of his press conference on Friday might have been overcome, and the closure of Guantánamo might have remained feasible rather than being, as it appears now, a failed dream whose day has passed.
And sadly, while this sad state of affairs continues to besmirch America’s name abroad, the real losers are the 176 men still held at Guantánamo, who, nine years after the 9/11 attacks, are still waiting for justice, whether they are “guilty” or not.
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