During the 2008 campaign, President Obama promised he would close the Guantanamo Bay detention facility within a year of his inauguration. Four years later, Guantanamo remains open and will remain open for the foreseeable future. President Obama blames Congress for this failure and says he has reformed the military detention system and bolstered America’s image throughout the world.
What he doesn’t mention is that many terrorist detainees would be better off if Obama had stuck to Bush’s detention policies. That’s because, in an effort to avoid sending detainees to Guantanamo, Obama has kept them in overseas military prisons, where they have no access to U.S. courts and languish in worse conditions than the detainees held at Guantanamo.
One of President Obama’s first actions after taking office was to sign an executive order to close the Guantanamo facility. But Obama soon found that doing so was impossible: foreign countries were not willing to take prisoners cleared for release; the American people didn’t want hardened terrorists sent to American shores and tried in civilian courts; and some prisoners couldn’t be tried and were too dangerous to be released, which meant they had to be detained indefinitely.
These, of course, were problems that candidate Obama was well aware of. But promising to close Guantanamo was a useful campaign slogan. So in 2010, the president’s top lawyer, Greg Craig, took the fall for Obama’s failure to close the prison.
After failing to close Guantanamo, President Obama vowed he would reduce the prison population and improve the detainees’ conditions. True to his word, the detainee population at Guantanamo has been reduced to approximately 170 individuals (though it should be noted that President Bush was also committed to reducing the population and eventually closing the facility).
But detainees’ conditions haven’t improved because, rather than sending them to Guantanamo Bay, President Obama has kept some of them in places such as Bagram Air Force Base in Afghanistan. Detainees in these locations face worse living conditions than those in Guantanamo. More importantly, they don’t have access to U.S. courts, which they would if they were at Guantanamo (the Supreme Court’s 2008 ruling in Boumediene v. Bush suggests that detainees held at Guantanamo have the right to challenge their detention in federal court but detainees held outside of Guantanamo do not — an interpretation that has since been confirmed by lower courts). This leaves detainees with no way to challenge their detention outside of the military legal system.
It is, however, a good arrangement for President Obama: This way, he can both keep his promise to reduce the Guantanamo population and prevent detainees from accessing U.S. courts.
One detainee, Faid al-Maqaleh, has been held at Bagram since 2003. His case is particularly intriguing since a military review board has cleared him for release three times.
The Obama administration has transferred partial control of Bagram to the Afghan government, but it has kept control over 50 detainees. It’s unclear what will happen once the Afghans take full control of Bagram, but it’s hard to imagine that the Obama administration will cede control over the detainees or ship them to Guantanamo.
President Obama continues to claim that he is improving the lives of terrorist detainees by working to shut down the Guantanamo Bay detention facility. He should explain why he has decided to keep detainees out of Guantanamo and out of U.S. courts.
David Meyers served in the White House from 2006 to 2009, and later in the United States Senate. He is currently pursuing graduate studies at Columbia University.