From the Miami Herald comes this update on the detainees at Guantanamo Bay as President Obama prepares to leave office:
The U.S. sent four cleared Yemeni captives from Guantánamo to Saudi Arabia, including a prisoner who previously backed out of an offer to resettle in Europe, the U.S. and Saudi governments announced Thursday.
None of the four men was ever charged with a crime across 15 years of U.S. military custody. The transfer left 55 captives at the detention center at the U.S. Navy base in southeast Cuba — 19 cleared for release to security arrangements and 36 indefinite detainees in the war on terror, 10 of them charged with war crimes.
But, crucially, the prison is still open, which means that President Obama has officially broken his much-repeated promise to close it.
The president’s failure to keep his pledge has, predictably, been blamed on Republican obstructionism in Congress. “Obama’s hands are tied!” his defenders insist. That is partially true, but as I argued at The American Conservative back in 2014, it’s not enough to let Obama off the hook:
The last big Gitmo news came in June [of 2014], when Obama released five prisoners in exchange for the return of Sgt. Bowe Bergdahl. What too few pointed out is that this release—conducted without congressional approval—indicates that the President’s excuse narrative is fictional and hypocritical.
For the President who announces his willingness to rule by executive fiat when Congress won’t cooperate to suddenly find his pen and phone have gone missing when it comes to Guantanamo Bay is disingenuous at best. Of course, Obama’s 2013 decision to close the office dedicated to closing Gitmo revealed this disconnect long before the Bergdahl releases. It is more than clear that his often insightful Guantanamo promises were less about American ideals than they were about American votes, as he supplied 2008 voters with the repudiation of the previous administration that assured his victory.
Looking forward, Obama’s failure to shutter Gitmo means it will now be controlled by Donald Trump, who has indicated he would like to send Americans accused of terrorism to Guantanamo Bay to be tried by military tribunal. Such a trial would leave U.S. citizens without the protections of at least the Fourth and Fifth Amendments, if not the Sixth and Eighth. It is a dangerous rejection of the rule of law and individual rights.
It is also less likely to put legitimate American terrorists behind bars, because civilian courts — the ones with constitutional due process — are actually better at convicting terrorists than military commissions:
An analysis of previous terrorism prosecutions, by both the Bush and Obama administrations, since September 11, 2001, shows a remarkable track record for civilian courts, which have prosecuted both large and small crimes with great efficiency and success. The numbers are inexact, and there has been some heated debated in the past about how accurately they reflect the convictions of bona fide terrorists. (For example, the Justice Department sometimes counts those who are convicted of related crimes—like drug dealing, money laundering, or immigration charges—as terrorism convictions.) Yet all available evidence suggests civilian courts are far more effective than military courts when it comes to punishing suspected terrorists.
Much like foreign policy more broadly, President Obama has talked a great talk on indefinite detention. But with Gitmo still open and President Trump nigh, I only wish he had walked the walk.