behind the bars: guantanamo bay

Obama and Bush: How Do the Presidents Compare on Guantánamo Bay?

It depends what you prefer: headstrong mistakes or broken promises.

by Jason Leopold
10 November 2014, 10:00am

(Photo by Anwar Amro courtesy of AFP/Getty Images)

In the early days of Barack Obama's presidency, the Democrat was cast as a cool, compassionate saviour; a constitutional lawyer who would cut through the darkness surrounding Guantánamo Bay and bring an end to America's shame. George W Bush had proclaimed he had the power to indefinitely detain suspected terrorists captured after 9/11 without charge or trial. Obama would surely never do such a thing, and suggested that Bush's detention policies and executive power grab were unlawful. He vowed to reverse them. Bush said establishing Guantánamo was "necessary", but acknowledged towards the last days of his term that it became a "propaganda tool" aiding Al Qaeda's recruitment drive, at one point agreeing that it needed to be shut down.

So, when it comes to Guantánamo, what actually sets Obama apart from Bush?

To begin with, Obama lived up to what was expected of him. He signed an executive order – one of his first acts as president – and promised to close Guantánamo Bay within a year of taking office, in 2009. More than five years on, Guantánamo remains open and detainees within the facility see Obama as a Jimmy Carter figure, a man who promised much but delivered more of the same, if not worse. The White House says its failure to close Gitmo is down to fierce bickering and legislative constraints imposed by Congress on the transfer of detainees. It's a story they've been repeating for five years.

The facts tell a different tale. Obama has shown little interest in tackling the Guantánamo problem since he suffered a bipartisan backlash in the first year of his presidency over his attempts to close the prison and resettle a handful of detainees in Northern Virginia. Obama continues to say he is committed to closing Guantánamo but lawyers who represent the detainees say the president's actions have not matched his rhetoric.

Yet Obama and top officials in his administration have somehow convinced the public that the president has made progress, even though his own actions over the past five years have actively hindered the closure of Guantánamo. For example, the president placed a prohibition on the repatriation of Yemeni prisoners, and for an embarrassingly long time failed to fill the Guantánamo envoy vacancy at the State Department, an important job that requires finding countries that will accept detainees. For another lengthy stretch of time, the parole boards that were supposed to review the individual cases of detainees to determine if they could be released remained unfixed.

True to form, in reaction to a mass hunger strike that attracted global headlines, Obama announced during a major counterterrorism speech last year that he had come up with a new "plan" for shutting it down. It included lifting the moratorium on the repatriation of Yemeni detainees, filling the State Department vacancy and ordering the parole board to get to work. Away from the rhetoric, nothing much seemed to happen. Sixteen months have passed since the prohibition on transferring Yemeni detainees was lifted but the 87 inside Guantánamo, 58 of whom have been cleared for release for years, remain stranded. Caitlin Hayden, a White House National Security Council spokeswoman, told me, "We lifted the moratorium on transfers to Yemen and are now reviewing Yemeni detainees on a case-by-case basis."

(Photo by Saul Loeb courtesy of AFP/Getty Images)

To return to the question posed earlier, an examination reveals striking similarities between the Republican and Democratic presidents on issues related to the detention camp. Both have embraced the widely condemned military commissions system for prosecuting terrorism suspects and both have implemented a framework for indefinite detention. However, Obama went further than Bush ever dreamed of by enshrining the latter into law – the first sitting president to do so.

In fact, it's the differences that are much more difficult to identify. David Remes, a human rights attorney who represents Guantánamo prisoners, said it all boils down to competing public statements between the two administrations over the past decade: "Bush said the wrong things but did the right things. Obama says the right things but does the wrong things," Remes said, noting that the "right thing" under Bush amounted to the release of more than 500 detainees, versus the 90 transfers under Obama. "Bush did finally come around and say Gitmo should be closed. Obama said, 'I want to close Gitmo,' and then took flight at the slightest hint of controversy relating to it."

Colonel Morris Davis, a staunch Guantánamo critic who served as the chief prosecutor at the detention facility, says the "net result" between Bush and Obama is essentially the same. He characterises the Bush administration "as bad intentions coupled with a strong will in the face of no opposition". The Obama administration, he says, is more a case of "good intentions coupled with a weak will in the face of significant opposition".

But Davis believes there is one clear difference:

"Bush opened the detention camp at Guantánamo; Obama tried to close it. Congress did virtually nothing to stop Bush and absolutely nothing to help Obama," says Davis. "Guantánamo was a two-way street under Bush, with 779 men arriving and more than 500 leaving, while under Obama it has been a one-way street out, with a slow trickle of men leaving despite the best efforts of some right-wing fear-mongers to block the President."

Yet Obama's failure to step up the repatriation and transfer of detainees – a majority (79) of whom have been cleared for release – is one of the main reasons he has earned a reputation among the captives as being worse than Bush. The sentiment stands in stark contrast to the cheers of "Obama! Obama! Obama!" the detainees chanted after he won the presidential election in November 2008.

Some detainees say the physical torture inflicted upon them by their interrogators during Bush's tenure is preferable to the psychological torture they have endured through Obama's rhetoric about closing the facility. Over a decade has passed and many detainees remain, still force-fed when they are on hunger strike, still – in Davis' words – "subjected to trial before a military commission if they're one of the few suspected of having committed a war crime, and still suspended in a bizarre state of legal limbo". The US government spends $2.7 million a year to keep each detainee locked up in Cuba. Bush started that, but Obama has continued it and, through the decisions he's made, his legacy will likely perpetuate it.

In 2011, the president signed an executive order institutionalising indefinite detention, a reversal on promises he made as a presidential candidate in which he said, "The law is not subject to the whims of stubborn rulers." His executive order states that some Guantánamo detainees can never be released because they are considered to be a threat to national security and others will not be prosecuted because the evidence against them is tainted due to the fact that it was obtained through torture.

The thing is that even if Guantánamo is closed before the end of Obama's second term; it will be merely a symbolic gesture. In reality, it will mean nothing. Guantánamo will live on. The policy of indefinite detention without charge or trial—the whole reason Guantánamo was built—is now the law of the land.

@JasonLeopold