Barack Obama’s first executive order when he was made president called for the closure of Guantánamo Bay as quickly as possible. He didn’t follow through immediately when he had the chance – when he was still riding high on his election victory and the world was in love with him. Instead, he tried to work with the Republicans to create a bipartisan solution, an effort which failed dismally.
Now, with the killing of Osama bin Laden, President Obama again has a window in which to close this prison. Indeed, it could even be a shrewd political move, a demonstration to a world which is questioning the legality of Bin Laden’s killing that the president has a handle on what is right.
Discussion of the legitimacy of Bin Laden’s killing is somewhat fruitless; we do not have and probably never will have the details. It can be argued that entering into an allied nation’s sovereign territory without permission and shooting an unarmed person, even if he is an enemy leader, is both questionable under international law and a disappointing missed opportunity to put one of the most noted terrorists in history in the dock.
But it is at least arguable that it was a legitimate action. Congress’s authorisation of use of military force legislation – passed in relation to those responsible for 9/11 – definitely allowed for the use of military force: «The president is authorised to use all necessary and appropriate force against those nations, organisations or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harboured such organisations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organisations or persons.»
Maybe President Obama could grasp this opportunity to say: «We did the right thing here. And also, we have an unlawful prison which contains a bunch of prisoners who have been cleared for release for many years and who are on any view harmless. We are going to do the right thing about that too. I said that we would close it several years ago – now we are actually going to do it. And while I’m at it, I will reaffirm that torture is not the way that civilised nations get their intelligence.»
It would not be easy. Some Republicans are taking this opportunity to tout torture wherever they can. Fox News seems to consider its corporate mission to be the promotion of torture as an intelligence policy. This, despite convincing arguments that the information which led to the capture of Bin Laden did not come from torture. Even Donald Rumsfeld said: «It is true that some information that came from normal interrogation approaches at Guantánamo did lead to information that was beneficial in this instance. But it was not harsh treatment and it was not waterboarding.»
Then there is what to do with the people in Guantánamo. Because Obama did not seize the moment to resettle the Uighers – whose innocence of terrorism is now unchallenged by anyone – in the US, he has now lost any momentum to resettle anyone from Guantánamo in the US. Thus, he has to find allied nations to take the men in order to close the prison.
In addition, there is the money – Congress’s National Defence Authorisation Act for 2011 contained restrictions on public money being used to bring Guantánamo detainees to the United States or transfer them to foreign countries. When he signed this act, Obama said he would «seek repeal of these restrictions». This has not happened. Now it is time to do it.
Even without repealing the act, there are some things the Obama administration could do to get the zero threat people out of Guantánamo: when they win their habeas litigation, the hearing in which the case against a detainee is brought before a court, the administration could choose not to appeal. They could stop litigating the habeas litigation in a mindlessly aggressive way which perpetuates the image of these men as being dangerous. They could negotiate consent orders which would agree to their release.
As I say, it would not be easy, but Barack Obama applied for the job. Everyone has tricky things on their «to do» list, but this is not you or me. The president is in a pretty good bargaining position – not only is he is the most powerful man in the world, he has incredible popular support now and for the next few weeks. If he were to put sufficient political welly into this, he could close Guantánamo Bay.
Clare Algar, executive director of Reprieve.