President Obama's admission in China that he will miss his self-imposed deadline for the closure of Guantánamo is disastrous for the majority of the 215 men still held, and for those who hoped, ten months ago, that he would move swiftly to close this bitter icon of the Bush administration's lawless detention and interrogation policies in the "War on Terror."
Despite announcing the closure of Guantánamo on his second day in office, as part of a number of executive orders rolling back the Bush administration's executive overreach, Obama then failed to follow up with a detailed plan, missing the opportunity to bring a number of wrongly imprisoned men to the US mainland (the Uighurs, Muslims from China whose release into the US had been ordered by a District Court judge), and allowing Republican fearmongers to seize the initiative, mobilizing lawmakers (including some in Obama's own party) to pass legislation preventing any cleared prisoner from being released into the United States.
Recently, lawmakers were even prepared to go so far as to prevent the administration from bringing prisoners to the US mainland for any reason, even to face trials. Senior officials successfully fought back against this proposal, and announced last week that ten prisoners, including Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, were to be brought to the US mainland to face trials, either in federal courts or in a revamped version of the much-criticized Military Commissions, introduced in November 2001, and revived by Congress in 2006 after the US Supreme Court ruled that they were illegal.
However, administration officials have also explained, as the Washington Post described it, that the government does not intend to put more than 40 prisoners in total on trial, leaving 175 men in Guantánamo in a predicament that has been troubling since Congress rose up in revolt against Obama's intentions, and which has suddenly become even more alarming.
While Obama's deadline stood, there remained the possibility that the President could persuade lawmakers to drop their opposition to bringing these 175 men to the US mainland, so that Guantánamo could be closed as promised.
Now, however, with the President publicly conceding that this will not be possible, and refusing to set a new deadline, it is difficult to work out what pressure the administration can exert on lawmakers to persuade them to overturn their opposition to allowing any prisoners into the US unless they are to face trials.
The horrible truth is that, as a result, prisoners cleared by military review boards under the Bush administration, by the Obama administration's interagency Task Force, established as part of his executive orders, or by the US courts, after successful habeas corpus petitions, who cannot be repatriated because of fears that they will be tortured in their home countries, have no alternative to remaining in Guantánamo, until, if possible, other countries can be found to accept them.
According to officials, around 90 prisoners cleared for release are still at Guantánamo, and a majority of these - from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan - cannot be repatriated. European countries have so far accepted a handful of cleared prisoners, but a major stumbling block to the acceptance of others has been the Americans' refusal to accept cleared prisoners themselves.
The other group - numbering around 75, according to administration officials - are those whom the government does not wish to either charge or release, claiming that they are too dangerous to be released, but that not enough evidence exists to put them on trial, or that the evidence is tainted through the use of torture (or, as the Washington Post put it, "because of evidentiary issues and limits on the use of classified material"). This is deeply disturbing, as there is, simply, no excuse for holding people in what is essentially an identical form of "preventive detention" to that practiced by the Bush administration, and prisoners should either be charged or released.
For a small number of these men - eight, to date - the administration can justify its actions because they lost their habeas corpus petitions before District Court judges, who ruled that the government had established, by a preponderance of the evidence, that they were associated with al-Qaeda and/or the Taliban. As a result, the government can continue to hold them under the Authorization for Use of Military Force, the founding document of the Bush administration's "War on Terror," through which Congress authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
It is difficult to see why administration officials mentioned the number of prisoners whom the administration intends to hold indefinitely without charge or trial, as their ongoing habeas corpus petitions will put these decisions in the hands of judges, where they belong. In the long run, it is uncertain how acceptable it is to hold prisoners on this basis, especially if it turns out that they may be held for the rest of their lives for "crimes" no more egregious than, for example, cooking for an Arab fighting force supporting the Taliban in 2001.
In a world unsullied by the Bush administration's lawlessness, they would have been held as prisoners of war protected by the Geneva Conventions, who can be held until the end of hostilities (in which case they would still be held, as no one seems to have any idea when this particular war will come to an end). However, this didn't happen, of course, and, as a result, the administration needs to do all in its power to facilitate the habeas corpus petitions of the majority of these 75 men, and to release those whose petitions succeed (as in 30 of the 38 cases so far decided).
Even so, it remains unacceptable that these men should have to stay in Guantánamo while their petitions proceed to court, just as it remains unacceptable that cleared prisoners should languish at Guantánamo for one minute longer, let alone for months, or possibly years beyond the deadline that has proven impossible for the administration to honor.
In an interview with Fox News that followed his announcement about Guantánamo, President Obama explained, "We are on a path and a process where I would anticipate that Guantánamo will be closed next year. I'm not going to set an exact date because a lot of this is also going to depend on cooperation from Congress."
That last line sums up the problem succinctly, and I can only hope that this cooperation will be forthcoming, although one major problem, clearly, is that Republicans will delight in thwarting the President still further. If it does not happen, however, the failure to close Guantánamo will cast a dark shadow on Obama's presidency, and an even darker one on the prisoners - whether cleared men, or others still held without charge or trial - who will rightly conclude that, for them, there really is no justice in the United States.