The Guardian has a new piece out this week that offers a helpful update on the status of Guantanamo Bay. If you’ve followed this issue closely, you will be not be surprised to learn that the news is not good. Yes, there have been a few welcome transfers during Obama’s tenure, including the recent release of the last British citizen held there, Shaker Aamer. But many more people remain trapped, and nearly half of them have already been cleared for release. Now Congress has passed a law to ban transfers of detainees to the US, which would directly obstruct the latest plans from the White House to close the facility.
In other words, it looks like we’re still a long way off from closing this institution.
Many liberal commentators on this subject are inclined to give Obama the benefit of the doubt and blame the failure to close Guantanamo on obstruction efforts by the Republicans. But as this article points out, this is fundamentally wrong for two key reasons:
- Obama’s upcoming plan to close Guantanamo is largely a symbolic gesture. It will transfer the detainees to a maximum security prison in the US, but many of them will still not be released. They still won’t be charged with a crime; they just won’t be released. But the main problem with Guantanamo Bay was never Guantanamo itself–it was precisely this practice of indefinite detention, which is an overt violation of the Fifth Amendment. Transferring the practice to US soil would potentially allow Obama to make a victory lap on one of his campaign promises, but it does little to remedy the real issue. And indeed, it seems like this was the plan all along.
- Obama has consistently ignored Constitutional limits on his power throughout his Presidency on numerous issues. So the idea that his hands are really tied here is not credible. And since he clearly doesn’t believe in defending the Constitution’s limits on Presidential powers in principle, his failure to act on Guantanamo is not a matter of law but a matter of politics. And indeed, Obama has already explicitly violated the law by releasing Guantanamo detainees when he found it politically expedient to do so in the past. Nothing happened to him then, and nothing would happen now.