Why hasn’t Obama closed Guantanamo Bay?

April 30, 2013

When CBS News correspondent Bill Plante asked President Obama about the hunger strike at Guantanamo Bay, which began in February and now includes as many as 100 of the camp's 166 detainees, he made his question about as pointed as possible. "Is it any surprise, really," Plante asked, "that they would prefer death rather than have no end in sight to their confinement?"

Obama almost seemed to agree. In his long and eloquent response, he addressed not just the hunger strike – which he framed as an inevitable result of the prison's continued use – but the morality and logic of the facility itself.

"The notion that we're going to continue to keep over a hundred individuals in a no-man's land in perpetuity," he said, "the idea that we would still maintain forever a group of individuals who have not been tried – that is contrary to who we are, it is contrary to our interests, and it needs to stop."

Obama also called the detention center at Guantanamo "not necessary to keep America safe" as well as "expensive," "inefficient," that it "hurts us in terms of our international standing," "is a recruitment tool for extremists" and "needs to be closed."

Obama pledged that, though he failed to close the facility after first coming into office, he would try again. "I'm going to go back at this," he said. "I've asked my team to review everything that's currently being done in Guantanamo, everything that we can do administratively, and I'm going to re-engage with Congress to try to make the case that this is not something that's in the best interests of the American people."

The impromptu comments were a little surprising for their rhetoric, sounding more like a 2007 campaign speech than the words of someone who has been U.S. president for four-plus years. As the New Yorker's Amy Davidson put it, "He spoke as if he had happened upon the place, like a bystander."

So why, if Obama is so passionate about closing Guantanamo, hasn't he? The question is a tricky one: There are very real political and legal hurdles, not to mention ever-present national security concerns. To the extent that we can name a single obstacle that's keeping bulldozers from razing the infamous detention center, it might be the inability of the White House, Congress and foreign governments to come to an agreement about where to put the detainees.

The challenge in closing the prison at Guantanamo Bay is not actually the detention facility itself. The problem is the 166 detainees, each of whom has to be moved somewhere else. A basic premise of Gitmo, after all, was that these are people would be kept in perpetual limbo. Each detainee can leave that limbo through one of four different routes: a civilian trial, a military tribunal, a foreign country's prison system or freedom.

Sounds simple enough, right? Except that the first two routes – civilian trial or military tribunal – were blocked by Congress, which passed legislation barring the federal government from funding trials for Guantanamo detainees or buying a prison in the U.S. to house them.

The third route, to send the detainees to a foreign country's prison system, is only legal if the U.S. can be sure that the detainees will not be tortured there. Given some of the countries from which the detainees originate, this is not always an easy guarantee to make. And there have been doubts about foreign governments' ability to appropriately safeguard the detainees. A 2008 Washington Post article portrayed Yemeni officials struggling to convince their U.S. counterparts that they could safely accommodate prisoners from Guantanamo, while U.S. officials worried that they might be released.

The fourth route, freedom, actually already applies to 86 of the 166 detainees. The U.S. government believes they can be safely released back into the world, but it has nowhere to send them. For many of these individuals, their home country will not take them or might torture them, meaning the U.S. has to find an entirely different country to release them to.

There's been a great deal of political attention to this last category. Recent congressional legislation allows the Pentagon to get a special "waiver" allowing it to ship detainees to third countries, but only if a senior administration official pledges that the receiving country can guarantee that the detainee will never take up (or, in some cases, return to) terrorism against the U.S. Given that a recent study estimated that between 16 and 27 percent of released Gitmo detainees have participated in terrorism since leaving the facility, it's hard to imagine any top political officials betting their careers on newly released detainees never returning to extremism. Whether the significant political risk of using these waivers is a bug of the program or a feature, the effect is the same, and in January the Obama administration effectively shut down the State Department office dedicated to closing Guantanamo.

So what can Obama do? He can lobby Congress, as he hinted he would do at Tuesday's news conference, perhaps to change the legislation blocking the U.S. from trying Guantanamo detainees or keeping them on U.S. soil. He can work with Yemen; a majority of the detainees are Yemeni, and their home country, which has been beset by political turmoil for the past two years, says it's working on a $11 million facility to house and rehabilitate former Gitmo detainees. Perhaps Yemen could be better prepared to accept former detainees and to give them enough good options that they won't want to turn to extremism. Obama could also work with Congress to loosen the politically unpalatable process for releasing detainees, or he could go ahead and release them anyway, although that would require finding countries to accept them.

No single step is likely to find a home for each and every one of the 166 remaining detainees. But hoping for the problem to just go away doesn't work, either. "I think for a lot of Americans, the notion is out of sight, out of mind," Obama said Tuesday. "I'm going to go back at it because I think it's important."

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Max Fisher | April 30, 2013