Still open, still terrible

Sunday May 5, 2013

The American prison on Guantanamo Bay in Cuba remains an international embarrassment, one that managed to survive President Obama’s first term in office. By undercutting our high standards of justice it eliminates our credibility when we lecture other nations about the legal limbos they have created. As we are reminded almost daily, there are limits to what the president can do unilaterally without help from an obstructionist minority party, but there are actions he can and must take to address this abomination.

Guantanamo, where alleged terrorists have been collected since shortly after the attacks of September 11, 2001, moves on and off the public radar, re-emerging this past Tuesday when it was learned that 100 of the 166 prisoners there were engaging in a hunger strike and 21 were being force-fed so they will remain alive. This puts the United States in the company of the British during the height of the Irish "Troubles" when IRA members, guilty or innocent of terrorism, were left to rot in jail without trial, with those who embarked on hunger strikes force-fed by their captors. This is not company the U.S. should keep.

President Obama promised during his first campaign for office that he would shut Guantanamo, but even something as clearly proper as that and as popular with Americans won’t necessarily get through Congress. Using the legislative power of the purse strings, Congress voted to restrict the White House’s power to send Guantanamo prisoners to other countries, including their native lands, or send them to the United States to be tried in federal courts. Having tied the president’s hands, congressmen then criticized him for accomplishing nothing.

Senate Minority leader Mitch McConnell, who wants to keep Guantanamo open in spite of the international harm it does to the United States, said Wednesday there is considerable congressional opposition to "the president’s goal of moving those terrorists to American cities and towns." In fact, neither Senator McConnell nor anyone else knows if they are terrorists because only a handful of those at Guantanamo have ever been charged with a crime. More than half of the prisoners there have been cleared for release but can’t be sent anywhere because of congressional restrictions. Many can’t be tried because there is no evidence against them or the evidence was produced through waterboarding and other forms of torture.

Six are facing charges before a military tribunal, which is a slow-moving and inefficient form of justice. Trying terrorist suspects who were not jailed at Guantanamo has produced a more than 80 percent conviction rate, which Republicans opposed to closing Guantanamo choose to disregard. They and many Democrats became hysterical when the administration proposed trying top-level al-Qaida official Khalid Sheik Mohammed for the crimes of 9/11 in a federal court in New York City, which is exactly where he should have been tried. Mr. Mohammed would quite possibly have been successfully convicted if not for the congressional uproar that ultimately blocked the trial.

The president does have options that for some reason he has not explored. Representative Howard McKeon, a California Republican who chairs the House Armed Services Committee, asserts that the president has the power to seek case-by-case waivers of the restrictions preventing detainees from being transferred to other countries but has never sought a transfer. Mr. Obama should do so. Human rights groups are urging the president to appoint an administration official to oversee Guantanamo policy and do an end-run around obstructionists. That action will invite challenges but is worth trying and is an improvement over paralysis.

Guantanamo, as the president said Tuesday, is expensive to maintain and doesn’t make the United States safer. It angers our allies and serves as a recruitment tool for our extremist enemies. Most fundamentally, permanent detention without trial, again quoting the president, is "contrary to who we are." Speaking rhetorically about Guantanamo’s continued, indefensible existence, Mr. Obama asked, "Why are we doing this?" None of the answers -- irrational fear, congressional illogic, political obstructionism -- will suffice. Guantanamo must be emptied and closed -- for good.


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