Yesterday – the two-year anniversary of President Obama's announcement that he would close Guantánamo by January 2010 – was a day of sadness for those of us who follow Guantánamo. Two years ago, on a similarly frigid day, the newly inaugurated president issued three executive orders, making it crystal clear that he sought a change of direction in the "war on terror" on matters of detention, torture and Guantánamo. Yet, since that day, his intentions have faltered again and again, to the point where it is fair to say that the promise of closing Guantánamo has been decidedly, and perhaps, irrevocably broken.
In 2009, as this was the first public statement of Obama's presidency, it appeared that he was decidedly determined, as a matter of highest priority, to bring closure to Guantánamo, and to the policies it stood for. In retrospect, one can only wonder whether the president acknowledges his failure to make good on the promise. Or whether he would merely insist defensively that a combination of politics and unforeseen complexities stymied his good intentions.
It's worth some reflection on the course of events since President Obama's inauguration. In May of 2009, the president delivered his famous "archives" speech, in which he outlined the full range of options available for closing Guantánamo. These included the transfer and release of detainees to their home or to third countries, the use of military commissions and indefinite detention – all of which existed in some form under Bush – and the use of civilian trials, something that had not been tried by Obama's predecessor. Each of these options was seen by the administration as an element in the eventual closure of the prison.
Let's examine, piece by piece, the headway each option has made:
• Transfer. After careful review of each of the 240 remaining detainees, the Obama team has succeeded in clearing over half of the detainees, 126, for transfer. This is a step forward. Yet, only 67 of those cleared have left Guantánamo to date. The rest remain in limbo until diplomats can fashion deals with either their countries of origin or third countries, such as the European nations.
• Military commissions. On the matter of military commissions, the Obama administration has had a stop-and-go record. After putting the commissions on hold initially for the purpose of reforming the processes, the Obama team tried two of the detainees originally charged under Bush. Both pled guilty. One of the defendants – 22-year-old Omar Khadr – will eventually be transferred to custody in Canada. The sentence for al-Bahlul remains under seal. This week, the government announced its intentions to resume the military commissions. What a military commission trial will look like under Obama remains to be seen.
• Civilian trials. On the matter of civilian trials, the administration's plans to go forward in the federal courts have encountered obstacle after obstacle. Attorney General Eric Holder tried to hold the trial of Khalid Sheikh Mohammed in Manhattan's federal court, only to be turned away by the city's mayor, chief of police and politicians around the nation. The disappointment over the Ghailani verdict which included 284 acquittals – despite the likelihood of a life sentence – has hardened the resolve of critics who are opposed to using the federal courts for the trial of Guantánamo detainees. Moreover, the justice department has refused, as of yet, to label this trial a victory for the civilian system, which tried the hardest of cases – involving torture, tortured witnesses and foreign evidence– and reached a verdict of guilty. To put a final nail in the coffin, Congress has voted to ban any more transfers of Guantánamo detainees to the United States under any circumstances, be it under law of war detention, for prison or for trial.
• Indefinite detention. The disappointments in each of these designated areas for enabling the closure of Guantánamo pale when compared to the apparent acceptance on the part of the administration that indefinite detention, the very essence of Guantánamo, has found its way into the future. The Obama administration earlier this month announced its intention to issue a new executive order allowing for the detention without trial of 48 of the detainees – the very number bandied about for years by the Obama administration as the number that would be kept without trial or release.
In other words, on each and every count of the original proposal for the ingredients necessary to resolve outstanding issues and thereby close Guantánamo, the president has betrayed his original promise. According to his record, Guantánamo will not close – maybe ever. It will remain active in all its forms: indefinite detention, military commissions and transfers – the very categories with which the Bush administration defined Guantánamo. And the one piece of Obama's policy that offered a true alternative – civilian courts – seems to be falling by the wayside.
It seems that the best we can hope for now is a new promise. A promise that the detention policy as it has evolved under Obama will at least be limited to the group now in Guantánamo, that individuals from Bagram or apprehended elsewhere in the world in the name of terror will not be subject to these same policy options. For many, even perhaps for some inside the executive, the continued existence of Guantánamo is a heartbreaking sign of the ways in which, once harmed, institutions and the values they embody do not readily recover.
But if Guantánamo is to remain open, then let's hope that its legacy ends with the detainees from the Bush era. This time, one can only hope, against common sense, that the promise would be kept.