Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura Donohue, and Jennifer Daskal, with more to come.
On his second full day in office, President Obama signed an executive order proclaiming that Guantánamo would be closed within the year. Seven years later, the President is still struggling with what to do with the 112 detainees still being held at the facility, and appears to be contemplating a Bush-like claim of executive power in the face of onerous detainee transfer restrictions (including new ones that are likely to be signed into law as part of the FY 2016 National Defense Authorization Act). Power Wars tells, in careful detail, the story of the decisions that were made (or not made) getting us to this point. And if nothing else is clear from Savage’s book, it’s clear that things did not go as expected. This raises the obvious question: How could things have been different?
In the post that follows, we offer our own assessment, flagging three critical moments where, in our view, had the Obama administration pursued a different tack, Guantánamo might already have been relegated to the history books: (1) the administration’s backing down on the Uighurs; (2) its ramping up of the military commissions; and (3) its changing position on the forum for the 9/11 trial. As Power Wars explains, all three moments — which took place relatively earlier in the administration’s first term — reflected individual decisions to succumb to the politics of the moment (which were in some cases, no doubt, fierce), rather than take a principled stand. Ironically, in each case, the political accommodation provided no real benefit to the administration, at least with respect to its goal of closing Guantánamo, but came at a very real cost — signaling to its critics that its commitment could be derailed in the face of sufficiently intense political pressure. The compromises fueled the partisan politics of the issue and eroded the support among otherwise sympathetic congressional allies (who, quite understandably, didn’t want to take the heat if the President wasn’t willing to back them up), making it increasingly difficult for the President to achieve his reform goal. If nothing else, the difficulties President Obama faces today over closing Guantánamo have these three episodes at their root.
I. Not Bringing the Uighurs Into the United States
Included among the more than 800 detainees brought to Guantánamo were 22 Uighurs — members of an ethnically Turkic Muslim minority group from northwest China. Most were turned over to the United States, purportedly for bounties, by Pakistani authorities in late 2001, and most had been cleared for release as early as 2004 by the Bush administration. But they could not lawfully be sent back to China because of credible fears that they would be subject to torture there.
When President Obama took office, 17 Uighurs remained. According to Savage’s reporting, in April 2009 the Obama administration decided that they would release two of the detainees — the two best English speakers — into the United States to live in a community of Uighur immigrants in Northern Virginia. The hope was that, by demonstrating its willingness to take these detainees, the United States could encourage other nations to take more. It is, after all, hard to persuade foreign allies to take in detainees when the United States was unwilling to do so itself.
When word got out, the uproar was swift and strong. Representative Frank Wolf, whose district would house the Uighurs under the administration’s plan, warned of “terrorists” being released into the community. As Savage notes, others piled on; Newt Gingrich even preposterously linked the men to the 9/11 attacks.
Instead of fighting back (these, after all, were largely men that the Bush administration had cleared for outright release, not transfer), or simply ignoring the political fracas (after all, at the time, there were no transfer restrictions), the Obama administration caved. The two men were instead eventually sent to Bermuda, and, after complex habeas litigation in which the administration fought the Uighurs’ demands that they be released into the United States, all 17 were ultimately resettled to third-party countries by the end of 2013. But the consequences of that moment were profound, extending far beyond an argument of what to do with an entirely unique subset of detainees.
First, backing down on the Uighurs gave the political opposition increased ammunition. The lesson: this was an issue that the Republicans could fight — and win — on. Critics could portray themselves as protecting the nation from terrorists, while painting President Obama as pursuing dangerous policies that would make the nation less safe. Never mind that both Obama and John McCain, the Republican nominee for President in 2008, committed to its closure. The messaging worked. They won. And this empowered them to keep fighting. The political intransigence reflected in subsequent transfer restrictions was arguably fed, at least in party, by the Obama administration’s unwillingness to fight with respect to the most sympathetic group of Guantánamo detainees — the Uighurs.
Second, and even more importantly, it changed — irrevocably — the Guantánamo narrative. Had the two men been resettled in Virginia, they almost certainly would have integrated quietly and peacefully into the community — as they did in their new home in Bermuda. The face of Guantánamo would have been different. And the key talking point that all Guantánamo detainees are terrorists who can’t be released would have lost its force. The demagoguery that has subsequently been relied upon as a basis for barring transfers of detainees to the United States — even for medical treatment or criminal trial — would have been much easier to discredit.
Instead, the all-detainees-are-terrorists narrative prevailed, providing further fodder for partisan fighting on the issues, and making it politically difficult for even otherwise-sympathetic Democrats to take a stand in favor of civilian trials or against transfer restrictions. Any such stand would simply be portrayed as mollycoddling the terrorist detainees, and there was no guarantee that, when push came to shove, the President would support them.
II. President Obama’s Military Commissions
Despite committing to close on Guantánamo on his third day in office, President Obama did not immediately commit on the question of what to do with the military commissions. Rather, as Savage reports, he asked the military judges in the then-pending trials to issue a 120-day stay in order to give the administration time to assess its options. At the time, many — at least on the left — assumed that the stay spelled doom for most, if not all, of the commission prosecutions; the administration just needed more time to put the comparable civilian court cases together.
But that’s not what happened. Although then-White House Counsel Greg Craig and John Brennan supported shutting down the commissions, DOD, the CIA, DNI, and DOJ all favored keeping the commissions going, albeit with some significant reforms. After all, at least some set of detainees could presumably only be prosecuted in a military commission — or not at all. But rather than simply accept that criminal trials might not be possible for some of the detainees (who would, instead, presumably remain in military detention), President Obama endorsed the military commissions — and spearheaded steps to strengthen them.
The result was a two-track system of justice. Detainees that are “part of” al-Qaeda and either engage in or purposefully and materially support hostilities against the United States and its collation partners can either be tried in a military commission or (particularly if they committed their offenses after the 2001 and 2004 expansions of the material support statutes to apply extraterritorially) civilian court. Savage reports that the Department of Justice and Department of Defense worked out a document that listed the considerations as to whether or not a detainee would be sent to civilian court or military commission. In practice, though, the line of demarcation has been far simpler: With one exception, all of the Guantánamo detainees that have been prosecuted have been tried in the commissions; and terrorism suspects, regardless of where they were apprehended, that have been taken into United States since President Obama came to office got a civilian trial.
The politics of the issue, however, have not been so simple: First, it meant — and continues to mean — that military commissions are a legal option any time the United States apprehends an al-Qaeda detainee, even if the Obama administration has chosen not to exercise this option. When civilian prosecutors charged two Iraqi men in Kentucky for conspiring to support al-Qaeda’s affiliates, then-Republican Senate leader Mitch McConnell argued that the men should instead be sent to Guantánamo for military commission. When the United States charged Ahmed Warsame, a Somali who was captured in the Gulf of Aden in 2011 and deemed part of both al-Shabaab and al-Qaeda, in federal court, a number or Republicans complained that he should have been charged in military commission instead. Even after the Boston marathon bombings, the clamor for military commissions continued — even though there was no indication that the men involved were in any way covered by the commissions’ jurisdiction. Had the commissions been shut down in 2009, the continuing controversy over where to prosecute particular detainees (including the 9/11 detainees, see below) would have been (largely) shut down as well.
Second, it once again signaled the Obama administration’s unwillingness to stand up to Republicans on a closure plan for Guantánamo. True, Guantánamo could be shut down and the commissions continued, albeit on US soil. But for many, the decision to continue the commissions revealed yet another crack in Obama’s resolve. Perhaps commissions could have been justified solely as a way to deal with legacy problems, but the Military Commissions Act of 2009, which had the Obama administration’s imprimatur, authorized commissions against both past and future captives without any language limiting cases to Guantánamo. It was hard to maintain a message that the civilian system was so good that Guantánamo was not needed, yet at the same time help craft a system of military commissions for the future. After all, no future President will be bound by President Obama’s refusal to send new detainees to Guantánamo and/or the military commissions.
Third, the commissions themselves have largely been an embarrassment for the administration. Despite the best efforts of General Mark Martins, the current chief prosecutor, the commissions have been subject to endless delay and controversy — delays that stemmed in large part from the difficulties inherent in setting up an entirely new system of justice. The fact that the CIA independently monitored — and at one point attempted to censor — the proceedings didn’t help. The fact that the Justice Department insisted on fighting to uphold material support and conspiracy convictions (apparently over General Martins’ objections) didn’t help, either, especially given its poor track record on that score to date. But wholly apart from these specific embarrassments, there was almost no scenario in which reinvigorated military commissions were going to be perceived by anyone outside of the government and its closest supporters as either fair or wise, given their sordid history up to this point.
III. Moving, Then Un-Moving, the 9/11 Trial
The reinvigoration of the military commissions preceded by several months yet another sign that the administration would not stand tough on Guantánamo — the decision over where to hold the 9/11 trial. In November 2009, Attorney General Holder announced — to much fanfare — that the case against the five 9/11 defendants could and would be transferred to federal district court in Manhattan. The story from there is well known (and further documented in Savage’s book): The announcement set off a political firestorm, and led to a steady drumbeat of opposition from a number of quarters. The National Defense Authorization Act for Fiscal Year 2011 (FY 2011 NDAA) included transfer restrictions that formally barred the transfer of the 9/11 case (or any other Guantánamo detainees) to civilian federal court. But it had become clear long before the NDAA’s enactment that the trial wasn’t going anywhere. The administration didn’t want to fight the opposition. And the 9/11 trial resumed right back where it had started — in the Guantánamo military commissions.
This had big political, economic, and legitimacy costs: Between the initial announcement that the trials would be held in New York, and the passage of the FY 2011 NDAA — a period of 13 months — there was no legal obstacle to transferring the defendants to the custody of the Department of Justice, or prosecuting them in district court. The only obstacle was politics — including the (concededly significant) blowback that Attorney General Holder’s announcement initially provoked, especially when followed in short succession by the Fort Hood shooting and the underwear bomber episode. Since then, the transfer restrictions have been re-enacted year after year.
We do not mean to suggest that the decision to push forward, despite the intense opposition, would have been easy. But by backing down, the administration helped feed a narrative offered by its critics — that the Guantánamo detainees are too dangerous to bring onto US soil — that still pervades the conversation today. Even more importantly, had the Obama administration stayed the course on the 9/11 trial, that trial would surely be over by now. Instead, four and a half years after they resumed at Guantánamo, and over seven years after the very first hearings, the case is still in the pre-trial stage. It will be years, not months, before any verdict is ever handed down, to say nothing of the appeals process.
It would have been problematic enough if the Obama administration had simply committed, all along, to keeping the 9/11 trial in a Guantánamo military commission. But by committing to move it, then backing down, the administration not only missed a key opportunity to take the moral high ground on both Guantánamo and the civilian court system, but thereby emboldened Congress to stop them from ever even considering such a measure in the future.
It’s hard to say, of course, how the past six years would have unfolded if President Obama (1) had committed to moving some of the Uighurs into the United States; (2) forswore the military commissions in their entirety; or (3) at the very least, held firm on Attorney General Holder’s commitment to try the 9/11 defendants in civilian court. We obviously can’t prove a counterfactual. But we do know that what was done didn’t work so well. And it certainly seems that these measures would have changed the narrative and signaled a President willing to stand strong, which in turn would have made it easier for sympathetic members of Congress to support him (and thereby made closure itself easier as a result).
If that’s true, then what is the lesson here? In the context of national security, where the politics of fear can be so easily exploited, there have to be particular policy goals and/or reforms that are too important to be dictated by the politics of the moment, even in the aftermath of something as alarming as the near-miss over the skies of Michigan on Christmas Day 2009. It is, at times, the job of the President to shape the narrative, rather than be defined by it — to make the normative case for why doing something that seems unpopular is actually in our best interests. In doing so, he has the possibility of changing, rather than succumbing to, the latent political dynamic.
Perhaps with respect to Guantánamo, the President ultimately decided that this was not a case that was worth it, especially at the expense of the political capital deemed necessary to pursue, among other things, healthcare reform, two Supreme Court confirmations, and other domestic agenda items. But at some point, it was an important enough goal to be put on the agenda for the administration’s second full day. And had he taken a different tack, the politics might have been different. At the very least, it’s hard to imagine that the politics would have been even more toxic than they are today.
For us, then, the real lesson for the next President is to commit to his own his reform agenda — and not be scared of defending it when the going gets tough. He may not convince his opponents that he’s right, but at least he’ll convince them that he has the courage of his convictions, and, perhaps in the process, change the narrative and earn their respect.