TFF Associates & Themes Blog

By Jonathan Power

“Guantanamo has become a symbol around the world for an America that flouts the law”. Did you say that? Did I? No. It was the president of the United States of America, Barack Obama, speaking last week.

How come that the most powerful man in the world cannot open the locks of this unlawful prison? How come the prisoners can’t be transferred for trial and, if convicted, imprisoned in the United States itself? The simple answer is that the Republicans joined by some Democrats in Congress have continually blocked Obama. While it is true that his hands were tied during his first term he hasn’t tried again since he was re-elected – until last week, when in a speech he made some remarks on the issue including my opening line. Obama has been prodded to raise the issue again because of a hunger strike by most (about 100) of the 166 inmates.

It is still rather unclear what he proposes to do to break the Republican headlock. In January, not long after his inauguration, the Republicans extended and strengthened the limits for transferring detainees out of Guantanamo. Nevertheless, apparently Obama is going to lift the moratorium on the sizeable number of prisoners from Yemen that stops them returning home. This was supposed to happen some years ago but was put on hold when a single attempted terrorist attack on the US originated in Yemen.

Buck McKeon, the Republican chairman of the House Armed Services Committee, said he was willing to discuss Guantanamo with Obama, but first he needed to know what the president would do with “terrorist detainees who are too dangerous to release but cannot be tried”. But why can’t they be tried?- because in US courts, as in all civilized countries, evidence that is produced during torture is not admissible. And under President George W. Bush the US tortured many of them until Obama stopped it the day he was sworn in.

One must deduce from all this that the Republicans will insist that all the prisoners stay in Guantanamo until they die a natural death. (Sotto voce they whisper that if some of them kill themselves as a result of the hunger strike that will help things along.) The only way Republican policy could be overturned would be for the Democrats to win well in next year’s Congressional elections (well enough to have enough votes to overpower their own pro-Guantanamo bloc) – or at some future time, when another Democratic president comes to power with a Congressional majority to go with it.

Some of these prisoners are truly dangerous men. But others like Khalid al-Odah from Kuwait, incarcerated for 11 years, who the Financial Times recently highlighted, who claims he was teaching in Afghanistan at the time of his arrest, has never been accused of being a member of Al Qaeda or the Taliban.

At the beginning of his term Obama’s persona was riding high in the Muslim world. But that admiration, made possible by there being, after 8 years of Bush, a fresh and liberal voice in the White House has slipped away. But despite the withdrawal from Iraq, the announced withdrawal from Afghanistan and the support for the Arab Spring, the combination of Guantanamo and lack of progress on creating fair boundaries for a Palestinian state has undermined his standing.

He still has three years to redeem himself but he has to be extraordinarily forceful both on the Palestine issue and on Guantanamo.

I advocated a long time ago in “World Policy Journal”, an influential US foreign policy magazine, that if the prisoners were blocked from being taken for trial in US domestic courts then the courts should come to Guantanamo to replace the slow moving military commissions based in the prison which have done an ineffective job in trying to replace the federal court system. (Six prosecutors have resigned in protest.) For four years I haven’t heard a whimper about this idea. But earlier this month an article on the opinion page of the New York Times by two Yale University law professors, Bruce Ackerman and Eugene Fidell, developed my suggestion.

The president, they argue, can order this on his own say-so without recourse to Congress. “Previous presidents have established federal civilian courts on territory under American military control. The clearest precedent was set in postwar Germany.”

This doesn’t solve the problem of the handful of detainees deemed too dangerous ever to release. This can be dealt with another day as there are no quick answers. At the least they should be transferred to jails within the US and given normal visiting rights and legal advice.

But right now we need a promise from Obama to transfer some federal courts to Guantanamo immediately and then to close the prison once these courts have done their job.

Copyright: Jonathan Power 2013