Obama's Broken Guantanamo Promises
Gary Isaac | From the November 2016 issue
(AP Photo/Suzette Laboy)
More: Captured, Tortured, and Left to Rot at Gitmo
Barack Obama's first official act in office addressed not the economy or health care but Guantanamo. In a moment of high drama, surrounded by a phalanx of retired military brass, the president signed a series of executive orders acknowledging that "the individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus," providing that the executive branch would undertake "a prompt and thorough review" of whether the "continued detention" of the men at Guantanamo "is in the national security and foreign policy interests of the United States and in the interests of justice," and ordering that "the detention facilities at Guantanamo…shall be closed as soon as practicable, and no later than 1 year from the date of this order." Obama issued a separate executive order banning the use of "enhanced interrogation techniques," i.e., torture.
As far as Guantanamo was concerned, those executive orders would represent the high-water mark of the Obama presidency. The first year of his administration was noteworthy not for the closure of Guantanamo but for a series of unilateral actions that were starkly at odds with the president's rhetorical defense of habeas corpus and that doomed his much-heralded directive to close the island facility:
The Obama administration caved on its plan to resettle two of the Uyghur detainees in the United States. In its first months, the Obama administration had reached an agreement with habeas counsel for the Uyghur detainees—members of a persecuted minority group in China—to resettle two of their clients in the Washington, D.C., area, where there was an existing Uyghur-American community ready to help the detainees with jobs, housing, and other support. But in mid-2009, only a few days before their scheduled arrival, word of the plan was leaked. In the face of opposition by some members of Congress, the Obama administration walked away from the agreement.
The Obama administration argued, as previously the Bush administration had done, that the courts have no authority to order the president to release detainees here, even if there is no basis to continue to detain them and even if they present no security risk. In the waning days of the Bush administration, the district court that was hearing the Uyghur detainees' habeas cases ruled in their favor and ordered their release into the United States. The Bush administration immediately appealed, and in February 2009, just after Obama assumed office, the U.S. Court of Appeals for the D.C. Circuit ruled that the courts had no authority to order the president to release detainees into the United States. The decision gutted the detainees' habeas corpus rights, for habeas is meaningless if the court reviewing the lawfulness of someone's imprisonment has no authority to order his release. The detainees quickly sought review by the Supreme Court, but in May 2009, the Obama administration filed a brief opposing review and urging the Supreme Court to let the appeals court's ruling stand. The administration effectively persuaded the Supreme Court to dismiss the case as moot by arranging for the Uyghur petitioners to be released in Palau (a tiny island nation in the Pacific Ocean) instead.
Obama signed legislation barring transfer of detainees from Guantanamo to the U.S. and restricting transfer of the detainees elsewhere. In June 2009, Congress passed a supplemental appropriations bill that barred the use of funds to release any of the Guantanamo detainees in the United States or, as a practical matter, even to transfer them to the U.S. for detention or prosecution. The legislation also restricted the use of funds to transfer the detainees to other countries. At the time, the Democrats overwhelmingly controlled both houses of Congress, so passage of the legislation cannot be laid at the door of obstructionist Republicans. That the legislation passed at all reflects a failure of leadership on Obama's part. The legislation would make it impossible for him to make good on the executive order to close Guantanamo. Obama could have vetoed the legislation and used the "bully pulpit" of the presidency to explain why the restrictions were unacceptable. He did neither, instead choosing to sign the bill. Over the course of his presidency, Obama would repeatedly sign such legislation.
Obama continued the Bush administration's indefinite detention of individuals without charge. Obama's executive order had banned the use of torture going forward, but the only "evidence" against many of the detainees was tainted by torture or coercion. Because such evidence is considered inherently unreliable and would be inadmissible, it could not be used as the basis for criminal prosecution in our regular courts. But in May 2009, Obama announced that his administration would simply detain indefinitely, without charge, those at Guantanamo "who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States." The Obama administration came to describe this category of detainees as "impossible to try but too dangerous to release." Obama had campaigned on a pledge to restore the rule of law, yet if the rule of law means anything, it is that the law must be applied consistently and may not be ignored or manipulated to achieve a particular result. Adopting a policy to detain individuals without charge, precisely because there is no lawfully obtained and admissible evidence with which to charge them, is the antithesis of the rule of law.
Obama rejected calls to prosecute, or even appoint an independent inquiry to investigate, the torture of detainees during the Bush administration. When queried about the possible appointment of a special prosecutor to investigate Bush-era torture, President-Elect Obama stated that "we need to look forward as opposed to looking backwards." And in April 2009, when Obama approved the release of the so-called "torture memos" issued during the Bush administration, he "assure[d] those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution," stating that "nothing will be gained by spending our time and energy laying blame for the past." Again, a bedrock principle of our system of justice is that no person is above the law and that the criminal laws apply equally to all. High-ranking members of the Bush administration may or may not have violated the law in authorizing the use of torture. But Obama's policy of "looking forward"—of ignoring possible crimes by high-ranking officials because it was politically expedient to do so—is anathema to the rule of law.
The Obama administration broadly invoked the "state secrets" doctrine to forestall litigation seeking redress for torture. Candidate Obama had decried the Bush administration's practice of "extraordinary rendition"—transferring detainees for interrogation to countries whose authoritarian regimes were known to engage in torture—as the "outsourcing of torture." Candidate Obama had also promised to restore transparency to government, and criticized the Bush administration's efforts to have litigation challenging government actions dismissed on the grounds that the very subject of the litigation was a "state secret." But in Mohammed v. Jeppesen Dataplan, Inc., a 2009 case brought by foreign nationals who claimed they were victims of extraordinary rendition and torture at secret detention facilities in other countries, the Obama administration argued that the case should be dismissed under the "state secrets" doctrine. That same year, the administration invoked the doctrine to seek dismissal of litigation challenging the National Security Agency's warrantless surveillance program.
The Obama administration argued that U.S. courts do not have jurisdiction to hear habeas corpus petitions brought by detainees held at Bagram Airfield Military Base in Afghanistan. When Obama took office, his administration had to address pending habeas corpus litigation brought on behalf of detainees held by the United States at Bagram Airfield Military Base. The district court asked whether the new administration intended to change the government's position that the court had no jurisdiction to hear the Bagram detainees' habeas cases. In February 2009, the Obama administration responded: "Having considered the matter, the government adheres to its previously articulated position." Two months later, the district court rejected that position, explaining that "these petitioners are virtually identical to the detainees in Boumediene—they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be 'enemy combatants,' a status they contest." The Obama administration appealed, arguing, as the Bush administration had done, that the detainees at Bagram had no right to challenge their detention in U.S. courts. In June 2008, candidate Obama had praised the Supreme Court's Boumediene decision as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo." Now, the Obama administration was attempting to legitimate just such a "legal black hole" at Bagram. (In 2010, the administration's argument carried the day with the D.C. Circuit.)
It is painful to confront the juxtaposition between Obama's powerful personal defense of habeas corpus on the campaign trail—saying it's necessary to make sure you have the right person, because you might think you have "Barack the bomb thrower, but it's Barack the guy running for president"—and his abandonment of those principles once he occupied the White House.
The president's apologists have argued—and no doubt will continue to argue long after he has left office—that he did the best he could in the face of unprecedented opposition from the Republicans in Congress. But whatever opposition he might have faced in other policy areas, with respect to many fundamental "rule of law" issues, the fault for Obama's failure to bring about change lies not in his stars, but in himself.
This essay is from Obama's Guantánamo: Stories from an Enduring Prison, edited by Jonathan Hafetz © 2016. Reprinted with permission from NYU Press.
NEXT: New York Times Examines Mass Shootings and Gun Laws; Their Findings "Dispiriting to Anyone Hoping for Simple Legislative Fixes to Gun Violence"
Gary Isaac
Guantanamo Barack Obama Obama Administration
October.22.2016 at 9:00 am
"That the legislation passed at all reflects a failure of leadership on Obama's part."
Or it means that Obama didn't actually mean what he said in the first place. God knows that's never happened…
CharleneJGonzales
October.22.2016 at 7:55 pm
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go? to tech tab for work detail,,,,,,, http://www.highpay90.com
Jackand Ace
October.22.2016 at 10:46 am
Yikes. What a stretch. You really have to be elastic to lay blame for this at the feet of Obama, particularly if you are a libertarian.
You neglect the GOPs Inauguration Day meeting in 2009 to block all from Obama, including Gitmo. Let's turn to the American Conservative (what a progressive outfit) for a discussion of all the roadblocks put in Obama's way. In the discussion of using executive order, the only thing left,
"(It remains to be seen if Obama) has the political grit to follow through. He's going to need it, and a whole lot of sass and strategery to get past Republican demagogues who suggest all Muslims, much less the ones languishing at Guantanamo Bay, are suspect. It could be the test of his presidency."
It even mentions how John McCain, who supports closing Gitmo, won't work with the President because, you know, Obama!
So what the author above advocates and wants is executive order. And you know who will be the first to comain if he does use it?
Libertarians.
http://www.theamericanconserva…..challenge/
Let's turn to that libertarian stalwart as to his thoughts about the kind of thing the author wants:
"Sen. Rand Paul (R-Ky.) on Friday said he would oppose a move by President Obama to close the prison at Guantanamo Bay, Cuba, through executive action."
"We voted on it many times in Congress, and while I do think that we should charge the people in Guantanamo Bay and go ahead and give them adjudication and sentence them, I think that really shutting it down, you have to have an answer as to what you're going to do with these people," he said on CNN's The Situation Room, "and I think bringing them to our country is not the answer."
So much for the libertarian solution.
IIRC the biggest obstacle to Obama closing Gitmo were Dems/Progs who said "no in my backyard" by many of the same Dems/Progs who criticized Bush over Gi when they were expected to house the detainees in prisons in their states.
Much like when ed Kennedy said no to windmill generators off of his coast.
So much for the Democrat/Prog hypocrisy.
Sevo
And according to Jack, that poor guy in the WH would actually have to have a pair of balls to accomplish WHAT HE PROMISED.
Jack is SHOCKED that someone might require that lying piece of shit to do what he says he's going to do.
Your objection might make sense if any of the broken promises cited involved closing the place or required Congressional approval.
The rest is just excuse-making for political cowardice.
October.22.2016 at 12:44 pm
Glad you endorse executive orders and executive action. Just like you did on the Paris climate deal. Yeah, right.
I think that strawman has just about had it. Libertarians are against all executive orders. Yep, you got us.
Jackand Ace|10.22.16 @ 12:44PM|#
Glad to see you peddling non-sequiturs.
We can both be glad Obama isn't a "coward" on climate change, eh?
It does provide a nice example of revealed preference.
Hey, it's courage, right? At least by your definition.
It depends on the risk, of course. I think the political price for signing the Paris treaty was negligible.
And he goes for he deflection ladies and gentlemen !
What will Jackup come up with next ?
Oh, oh! My goodness!
Obo has flapped jaws, claimed to do things and done ZERO jack.
Here is a suggestion. Read the first paragraph of the authors article again, and tell me if he discusses closing Gitmo. Good.
Secondly, much of the point I made and referenced moving the prisoners there to prisons in the U.S., and once that occurred, Gitmo would in essence be closed. And two of the authors points refer to the transfer of prisoners to the U.S.
Here is a suggestion for you. Re-read the part where Obama signed a law banning the transfer of prisoners to the U.S. Thanks.
From a few weeks ago
" Today, U.S. Representative Candice Miller (MI-10) issued the following statement after the House passed legislation prohibiting the transfer of any individual detained at Guantanamo Bay to U.S. soil or foreign countries:"
http://candicemiller.house.gov…..ners-to-us
And if it passes the Senate, we'll see if Obama is willing to step up, now that it won't cost him anything to do so.
We will indeed see what he does. And you might make note that Obana didn't sign a bill prohibiting transfer of prisoners, like the author implies.
He signed the Defense Authorization bill, funding our defense. And the GOP put the added measure of prohibiting transfer of prisoners. Obama noted his disagreement, but recognized the need to find our defense.
If you or the author think Obama is to blame for that, and not the GOP, your nuts.
Oh, they share in the blame.
And you might make note that Obana didn't sign a bill prohibiting transfer of prisoners, like the author implies.
immediately contradicted by
He signed the Defense Authorization bill, funding our defense
Obama noted his disagreement, but recognized the need to find our defense.
Convenient. I'll bet he would have gone to bat if the GOP had added a measure restricting abortion or some other priority. Of course, civil liberties are decidedly not a priority.
Yeah sure, let's see any President, including any libertarian President, not fund our defense because he wants suspected terrorists transferred to the U.S. And included in that defense, all the benefits that vets are getting that they depend on.
Yeah, let's see any President do that. In the meantime, we have a President advocating for that transfer. And stand Paul if we was President? Nope, doesn't want it.
I get it. You guys aren't big on personal responsibility or civil liberties.
In the meantime, we have a President advocating for that transfer.
Until it comes time to step up, of course.
You really did make a fantastic argument for limited government though. Funny how you defend a system where politics trumps morality. Brings to mind this quote:
Once, I remember, I ran across the case of a boy who had been sentenced to prison, a poor, scared little brat, who had intended something no worse than mischief, and it turned out to be a crime. The judge said he disliked to sentence the lad; it seemed the wrong thing to do; but the law left him no option. I was struck by this. The judge, then, was doing something as an official that he would not dream of doing as a man; and he could do it without any sense of responsibility, or discomfort, simply because he was acting as an official and not as a man. On this principle of action, it seemed to me that one could commit almost any kind of crime without getting into trouble with one's conscience.
Clearly, a great crime had been committed against this boy; yet nobody who had had a hand in it ? the judge, the jury, the prosecutor, the complaining witness, the policemen and jailers ? felt any responsibility about it, because they were not acting as men, but as officials. Clearly, too, the public did not regard them as criminals, but rather as upright and conscientious men.
I'm off to start my weekend. Enjoy!
Me as well…block party!
Enjoy your weekend as well!
Lame. I'm jealous of you though, because the clothing in the children's section is so much cheaper than the norms have to pay.
Warty
Remember your Nietzsche. When you talk to long into the Joe, the Joe talks back into you. It's not worth it.
Fuck off, Jack!
Rufus The Monocled
Sevo did .
Duh !
Agammamon
Gitmo was created by executive order, Gitmo can be killed by one.
if the R's want to stonewall transferring our kidnap victims into detention inside the United States and 'expedite' an actual trial, then the President should simply pack them up and drop them off in their country of origin.
The mere existence of the prison at Guantanamo Bay is a human rights violation. Its placed there *specifically* so the last two administrations could fiddle-fuck the legalese to eliminate operational oversight. The whole method of 'selection' of who is going to end up there is a war crime. *Just* for extraordinary rendition Obama and W should be hauled up in front of the Hague.
Agammamon|10.22.16 @ 5:22PM|#
For all of Jack's pathetic excuses, ducking and weaving, this the point.
The lying piece of shit appealed to the anti-war Ds by *promising* to empty Gitmo. Once in office, it became obvious that it was going to take a lot of work to do that.
Hey, the first tee beckons! Don't get in the way of the golf game with actual work!
http://thehill.com/blogs/blog-…..the-answer
That's a link to the above Paul quote.
I think Obama did ok. He's at the mercy of his intelligence apparatus. They tell him these guys are demons and all hell will break lose if they are released and he has to believe them. But he made progress. The blame must be laid at the feet of the courts and congress as well. And oh, need I mention the voters.
Let these guys go and close Gitmo!
I would agree that Congess totally shirked their duties on this. That's pretty much been their sop for a while. We'll let the Executive have all of the power instead of doing our jobs, that way no one can blame anything on us. Depending on how it turns out we were either for or against the Executives decisions all along.
Trigger Hippie
It really is a sweet gig for a narcissist. Marginal power coupled with no accountability or fear of reprisal. Just look at our reelection rates.
For Congress to have done something, anything, would have been racist.
Well at least there were lots of questions at the debate about this, because the media clearly knows this will be a key-issue for the incoming president to address.
Trump promised to stop a proposed deal for AT&T to buy Time Warner if he wins the election
http://www.businessinsider.com…..ed-2016-10
I'm not a media-guy so i have no idea whether any of the consolidation in that sector has been good/bad/ or meaningless, but i think its ridiculous for politicians to campaign on 'stopping deals', openly acknowledging that the motivation for intervening in someone else's business-decisions is purely political, rather than driven by non-partisan analysis by the FTC or DoJ to determine if there are any relevant anti-trust issues. the latter is often pretty bullshit as well, but at least has the veneer of independence from petty politics.
It probably a good deal from a strictly bean counter point of view.
Whether the consolidation of media in a few hands is a good deal for the rest of us might be another viewpoint.is
It appears that our MSM is no longer a free press but a Pravda like octopus with different name for each tentacle that is interwoven into the Democrat Party.
Something I actually agree with Obama about. Obamacare IS like the Samsung Note 7.
http://hotair.com/archives/201…..something/
westernsloper
"But you don't go back to using a rotary phone (laughter.)"
Between golf, the man has a future in late night comedy. Maybe replace Colbert.
John Titor
Well let's actually apply that metaphor in full.
I'm some American who happens to have a rotary phone. It's not perfect, but it does its job, and while I might see the need for some improvements it's still perfectly serviceable. So out of nowhere the company decides that it's releasing a new cellphone that everyone needs to have, and is recalling the old rotary phones. By force. So even if you don't want to switch over, the company jacks up your rates on your rotary phone until you comply.
So you get your new cellphone, but it turns out that it really doesn't so anything the company said it does. And depending on who you are your cellphone might end up far worse than your rotary phone. Sure, you might have not been happy with your rotary phone, but are you happier with a cellphone that doubles your long distance costs?
Then it turns out that the new cellphones might randomly explode, and that the system built all its cellphone towers in regions where extreme weather might send them toppling down, meaning that you just won't have phone service.
The rotary phone doesn't come off as being the worse choice in this example.
I'm some American who happens to have a rotary phone. It's not perfect, but it does its job,
During the Northeast blackout of…. 2003? Anyone who had a rotary phone could still make phone calls. of course, many of the local people you were trying to call were probably unavailable (since most people had long ago moved to wireless, powered phones) – but emergency services, or if you wanted to call out of state… etc. it worked when nothing else did.
My mom had one, and i plugged it in, and she spent the evening gabbing in the dark with her school buddies across the country. Its a handy "SHTF/prepper" sort of thing to keep in the closet.
Maybe not in that example, but his holiness said rotary phones are not good, hence, if you have one, or liked your health care plan prior to the ACA, you are not enlightened. Wake up and smell the light Mr Titor.
Obama is like Augustus. He gives the appearance like he cares about the law but in reality he's consolidating power into the executive. Of course, Obama is no Augustus.
That is probably far too great a compliment to Obama and far too great an insult to Augustus. Of course, we are very lucky that in 2008 someone with the charisma and skill of Caesar didn't end up in the Presidency with Obama's popularity.
Agrippina/Elgabalus 2016?
"The president's apologists have argued?and no doubt will continue to argue long after he has left office?that he did the best he could in the face of unprecedented opposition from the Republicans in Congress. But whatever opposition he might have faced in other policy areas, with respect to many fundamental "rule of law" issues, the fault for Obama's failure to bring about change lies not in his stars, but in himself."
To sane and sensible non-parisan minds this much is evident. To others, not so much.
He 'inherited' the worst mess in all of mankind. So all things considered he did okay.
JayU
The thing about being a Democratic President and working with a Republican Congress, is it means you probably need to adjust the things you're trying to pass into law.
Or, you can not compromise your plans whatsoever, then blame the other guys when you oversee the most ineffective government in the history of the country.
Checks and balances. What a concept.
ammythomas251
until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….
…….. http://www.jobprofit9.com
Playa Manhattan.
UCLA-Utah is a great game so far. UCLA came back from 14-0 and scored 3 touchdowns in 5 minutes; and that's just the first quarter.
It says that Utah is 6-1. I thought they were undefeated. Who did they lose to this year????
Jerryskids
IIRC, Utah lost to Cal. I'd google it, but my internet's down right now.
I'm beginning to think a WE DON'T TALK ABOUT CAL meme is in order…
esteve7
Gitmo came up with my proggie friend and I was grilling Obama on how it's not closed.
"Hey, he's *trying*!" (it was an emotional "trying" like he was gonna cry)
So no matter what your D-Team does, they have good intentions, and they are just doing their best, man…..
The whole Gitmo debacle is an executive branch debacle. The last 8 years of Gitmo are on Obumbles.
At least Hillary isn't wasting her breath campaigning on closing it.
He's a-cookin' something up.
In recent months, Guant?namo has been swarmed by defense lawyers trying to clear cases. The rush is inspired partly by Obama's concerns about his legacy and partly by political calculations, as the Presidential election approaches. Hillary Clinton, who will accept the Democratic nomination this week, in Philadelphia, has vacillated on Guant?namo.
A good, lengthy piece on the in's-and-out's, but ultimately depressing when you realize it's all political bullshit – nobody in Washington does a damn thing because it's the right thing to do, it's all about "the optics".
And there's this: "Some people at Defense are completely opposed to the transfers," he said. "But D.O.D. people take orders. There's a foreign-policy benefit to each transfer, and there's a legitimate question of how dangerous the person is. If the Commander-in-Chief makes that decision, you salute sharply and you do it." If there's one place Obama has some authority to issue executive orders, it's within his role as Commander in Chief. Guantanamo is a military facility, is it not?
"Obama had campaigned on a pledge to restore the rule of law, yet if the rule of law means anything, it is that the law must be applied consistently and may not be ignored or manipulated to achieve a particular result."
Ha!- Thanks for reminding us he had no respect for the law in 2009. It makes the past almost 8 years make more sense. No reasonable prosecutor would take the case.
"The first year of his administration was noteworthy not for the closure of Guantanamo but for a series of unilateral actions that were starkly at odds with the president's rhetorical defense of habeas corpus and that doomed his much-heralded directive to close the island facility."
IOWs, Gitmo was just a warm up for 8 years of lies and prevarications.