President Obama made two important announcements about aspects of Guantanamo and its detainees in his speech today. These are worth flagging before I pivot and harp on the big problem with the President's comments about the base and those held there.
The first important announcement came in this paragraph:
Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. . . I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. . . . And we will insist that judicial review be available for every detainee.
The important statement is that the president is lifting his moratorium on transfers to Yemen. With this act, the President removes himself from the posture of being the principal obstacle to the effectuation of his own policy---the frustration of which he bitterly criticizes both in this speech and in other recent statements. After all, most of the detainees at Guantanamo are Yemeni; and the reason they could not go anywhere is only secondarily because of the transfer restrictions from the legislature. The primary reason was that Obama forbade it. Today's move is therefore an important step towards the ability to remove from Guantanamo a group of detainees whose detentions may be lawful but who may not need to be there. That is a salutary thing.
The second important statement is more subtle--and more broken up in the speech. But I think Obama very carefully hinted that we may see the use of military commissions in future cases:
To repeat, as a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a Military Commission.
. . .
I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. . . . Where appropriate, we will bring terrorists to justice in our courts and military justice system.
It's not quite a full-throated endorsement of military commissions, but it is a clear statement that the president regards their use as approrpriate---and importantly, not just with respect to Guantanamo cases but prospectively as well. The latter passage, after all, occurs in the president's comments about how to deal with legacy cases from the last administration. The former passage, however, is a description of Obama's preference for how cases should be handled in the present and in the future. In other words, the president wants a military commission site in the United States for Guantanamo detainees but also for future detainees whom our forces may capture and, after interrogating, decide to try before a military commission. I can think of no reason for Obama to include military commissions in that first paragraph other than to signal a commitment at least to the possibility of their use down the line.
These two important items notwithstanding, Obama's comments about Guantanamo were pretty lame.
Obama once again pontificated a fair bit about the need to close the site, and he situated the whole discussion in terms of his larger theme of bringing the war to an end:
During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists whenever we can.
The glaring exception to this time-tested approach is the detention center at Guantanamo Bay.
. . .
I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future---ten years from now, or twenty years from now---when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?
The trouble is that, as Wells pointed out earlier, Obama proposes nothing---nothing---concerning how to deal with those whom his own review task force deemed too dangerous to release but not plausible to bring to trial. The only thing he could say on that subject was that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”
And what basis for confidence could he possibly have on that score? It's not as though these cases have never been reviewed before.
There is only one way to resolve this problem other than maintaining a group of people in custody whom one cannot try: That is not maintaing that group of people in custody. But is Obama really going to free Abu Zubayda--against whom I have not seen a criminal case materialize? What about Mohammed Qatani, the would-be 9/11 hijacker turned away from this country's borders in Orlando with Mohammed Atta waiting for him on the other side of customs? What about the nearly 50 people whom the task force determined could not be tried but who pose real risks---and the additional people whom the task force believed could face trial but for whom that assessment proved optimistic? Until the president is willing to say that he means to set these people free, he should cut out the pieties about what sort of country we are---or would be if only a certain group of retrogrades would stop him from closing Guantanamo.