Instead of producing a rapid-action plan, the administration’s Guantánamo Review Task Force ran into a mess. The Bush administration had set up Guantánamo primarily as an interrogation site outside the reach of international or domestic law, not as a place to prepare suspects for trial. Intelligence files on each individual were spread across government agencies, and many were grossly incomplete. Some interrogations were tainted by torture. The Bush administration, under pressure from courts, had already released more than 500 prisoners, so the 240 detainees who remained were the toughest cases. “The result is a hodgepodge of internally inconsistent policies, an outsized role for the courts, and huge gaps in what the public has been told,” says Jane Harman of the Woodrow Wilson International Center for Scholars, who served on the House Intelligence Committee at the time.
As the task force bogged down in 2008, Obama made decisions that belied the existence of “bipartisan consensus” for closing Guantánamo. He angered the Right by releasing the “torture memos” in which Bush-era officials justified “enhanced interrogation,” and he angered the Left by refusing to investigate those officials or the interrogators. The fault line was clear: In 2009, only 26 percent of Republicans approved of Obama’s decision to shut Guantánamo, while 76 percent of Democrats did, according to Pew. In a 2008 poll, 83 percent of Republicans thought torture was justified in some cases (60 percent of Democrats agreed).
Accordingly, Obama’s political headwinds were strong. When Justice moved in November 2009 to try Khalid Shaikh Mohammed, the 9/11 mastermind, in Manhattan’s federal District Court, New Yorkers led by Mayor Michael Bloomberg (who had initially supported the plan) revolted. A similar NIMBY spasm thwarted a move to build a “supermax” prison for terrorism suspects in Illinois. Chicago could become “ground zero for jihadist plots” warned then-Rep. Mark Kirk, R-Ill.
In retrospect, by the time Obama gave his “season of fear” speech, he was already on the defensive. The day before, the Senate had voted 90-6 to bar the administration from transferring any detainees to the United States, following a similarly lopsided vote in the Democratic-controlled House a week earlier. It was the first of many restrictions that Congress would impose in the months and years to come—tying the administration’s hands not only in closing down Guantánamo but also in releasing its prisoners, trying them in federal courts, or transferring them to third countries.
Administration officials were surprised at how eager Republicans were to use Guantánamo as a wedge issue, given that McCain had also promised in 2008 to close it. Benjamin Wittes, a Brookings scholar who went on to write Detention and Denial: The Case for Candor After Guantánamo, warned early that it would be hard, for political reasons, to close the prison. “But almost no one anticipated that there would be a huge, bipartisan majority in Congress united behind the proposition that it should remain open indefinitely and the detainees there should be tried in military commissions,” he says. “It turns out that the American people don’t like the detainees very much, and there’s much more public support for those who want to keep Guantánamo open. That really rocked the Obama administration back on its heels.”
Unable to fulfill his campaign pledge, Obama has focused on improving the prison, reforming military commissions, and directing new suspects toward the federal courts (which have notched more than 400 terrorism convictions since 9/11, compared with just seven in military commissions). The 2009 Military Commissions Reform Act narrowed the differences between federal trials and commissions, for instance, by shifting the burden of proof for hearsay evidence from the accused to the government; it also barred evidence gathered from torture. The upcoming trial of Mohammed and his cohorts at Guantánamo will test the new standards.
In this election cycle, Obama rarely mentions Gitmo on the campaign trail; he has ceded that ground to Republicans. Meanwhile, the nation has set a precedent for treatment of captives that may haunt U.S. troops in the future, according to retired Col. Morris Davis, a former Guantánamo prosecutor who resigned in protest in 2007 over pressure from Bush administration appointees to use evidence gathered during enhanced interrogations. “The American public continues to buy into the false narrative that the detainees remaining at Guantánamo represent the ‘worst of the worst,’ whereas I’ve seen, personally, that description only applies to a significant minority of detainees,” he says. “We listened to the fearmongers and turned our backs on the law, and we’ve been running ever since.”
JUDGE, JURY, EXECUTIONER
If civil-rights advocates were disillusioned about Guantánamo, they’re incensed by the administration’s attitude toward due process. They hear echoes of Bush in the policy of indefinite, preventive detention for prisoners who can’t be tried even in military commissions (for lack of reliable or untainted evidence) but who are considered too dangerous to release. They hear those echoes, too, in Obama’s decision not to investigate CIA interrogators—meaning that he’ll forgo the possibility of a legal precedent holding that “enhanced interrogation” is torture, paving the way for future administrations to use it.