This week, President Barack Obama made the momentous announcement that he intends to close the infamous prison at Guantánamo Bay in Cuba once and for all.
Should he succeed, it would be a most impressive accomplishment for the president, considering that he already accomplished it on January 22, 2009—his third day in office.
Or so we thought. Yet here we are, with the prison still open and the president still struggling to get rid of it. What happened?
The short answer (as expected) is Congress, which on various occasions since January 2009 has voted to withhold funding that would make Gitmo’s closing possible, as well as opposing any and all efforts to transfer prisoners from Cuba to a facility in the United States.
The long answer is more complicated, rife with the myriad legal and logistical hurdles that inevitably arise when the status of a few hundred alleged terrorists hangs in the balance. It has become progressively more apparent that a complete and orderly retreat from the Guantánamo stain may have been a fantasy all along.
The Obama presidency has been one of political ironies (as most presidencies are) and the continuing story of Guantánamo Bay is among the most salient of all.
The first thing to understand is that Obama really, truly wants to close the Gitmo prison. We know this because every one of his acts on the issue is consistent with such a desire, cheering on legislation that would do the job and loudly complaining about legislation that would not.
This being the case, we have to ask a second time: Why hasn’t he gotten it done?
Yes, yes, we know: Congress is where productivity goes to die, and Gitmo’s legal machinations run with all the efficiency of a tortoise with a piano on its back.
Somehow, this explanation is not quite good enough. If we learned anything from the presidency of George W. Bush, it is that when it comes to matters of foreign affairs and the handling of enemy combatants, the president can do whatever he damn well pleases.
It has become an uncontroversial matter of public record, for example, that our former commander-in-chief was responsible for the sorts of prisoner interrogation that was, and is, explicitly prohibited by the Geneva Conventions, to which the United States is a signatory. And yet, no member of the Bush administration has yet been prosecuted for torture.
Further, it is equally well-known that President Obama has not shied from following Bush’s lead in taking the law into his own hands when it suits his needs—as demonstrated most dramatically in the 2011 death-by-drone of Anwar al-Awlaki, which established the principle that the president has the authority to kill an American citizen who might be up to no good.
Knowing these facts, we cannot help but wonder whether it is not entirely within Obama’s abilities to sidestep Congress and the law and simply close the danged prison and transfer its prisoners of his own accord, gambling—as Bush successfully did—that neither he nor his underlings will ever be punished for doing so. If he truly believes, as he truly does, that such a move would be in the best interests of the American people and the world at large, what on Earth is he waiting for?
Herein lies the irony.
The Americans who most agree with President Obama about the moral imperative in closing Gitmo are largely the same people who most loudly protested President Bush’s torture program that kept the place running and the undemocratic executive unilateralism with which he pulled it off.
Now, it would appear the surest way to eradicate the black mark our 43rd president branded is for the 44th president to exercise the same sort of strong-armed executive fiat that caused all the trouble in the first place. Are Obama’s supporters prepared to accept this rather uncomfortable state of affairs, should it come to pass?
In the meantime, is it not to Obama’s credit that, on this issue, he has thus far declined to assume powers not granted by the U.S. Constitution, even as the probability that he would get away with it are fairly high? Is it preferable that he adhere to the principle of the separation of powers, or to the principle of extending constitutional rights to political prisoners, even if the latter would require abandoning the former?
Oftentimes, to be the American president is to face impossible choices, for which one’s ultimate decision will be blisteringly assailed by one side or the other.
The sad fact about politics today is how so many of us, in our impatience, have given up on the moral dimension and will settle for a decision of any kind.