Obama: We’re Force-Feeding Cleared Detainees Because We Couldn’t Try Them in Civilian Courts

At a press conference today, Obama had this to say about hunger strikers at Gitmo.

Q: Mr. President, as you’re probably aware, there’s a growing hunger strike at Guantanamo Bay, among prisoners there. Is it any surprise, really, that they would prefer death rather than have no end in sight to their confinement?

PRESIDENT OBAMA: Well, it is not a surprise to me that we’ve got problems in Guantanamo, which is why, when I was campaigning in 2007 and 2008 and when I was elected in 2008, I said we need to close Guantanamo.

I continue to believe that we’ve got to close Guantanamo. I think — well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

Now Congress determined that they would not let us close it and despite the fact that there are a number of the folks who are currently in Guantanamo who the courts have said could be returned to their country of origin or potentially a third country.

I’m going to go back at this. I’ve asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively, and I’m going to re-engage with Congress to try to make the case that this is not something that’s in the best interests of the American people.

And it’s not sustainable. I mean, the notion that we’re going to continue to keep over a hundred individuals in a no man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al-Qaida core, we’ve kept the pressure up on all these transnational terrorist networks, when we’ve transferred detention authority in Afghanistan — the idea that we would still maintain forever a group of individuals who have not been tried — that is contrary to who we are, it is contrary to our interests, and it needs to stop.

Now, it’s a hard case to make because, you know, I think for a lot of Americans, the notion is out of sight, out of mind, and it’s easy to demagogue the issue. That’s what happened the first time this came up. I’m going to go back at it because I think it’s important.

Q: (Off mic) — continue to force-feed these folks — (inaudible) —

PRESIDENT OBAMA: Well, I don’t — I don’t want these individuals to die. Obviously, the Pentagon is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this. Why are we doing this?

I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing’s happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with rule of law, consistent with our traditions. The — the individual who attempted to bomb Times Square — in prison serving a life sentence. Individual who tried to bomb a plane in Detroit — in prison serving a life sentence. A Somali who was part of al-Shahab (sic) who we captured — in prison.

So we can handle this. And I understand that in the immediate aftermath of 9/11, with the traumas that had taken place, why, for a lot of Americans, the notion was somehow that we had to create a special facility like Guantanamo, and we couldn’t handle this in — in a normal, conventional fashion. I understand that reaction.

But we’re not over a decade out. We should be wiser. We should have more experience at — in how we prosecute terrorists. And this is a lingering, you know, problem that is not going to get better. It’s going to get worse. It’s going to fester.

And so I’m going to — as I’ve said before, we’re — examine every option that we have administratively to try to deal with this issue. But ultimately, we’re also going to need some help from Congress. And I’m going to ask some — some folks over there who, you know, care about fighting terrorism but also care about who we are as a people to — to step up and — and help me on it.

To review, he was asked about hunger strikers’ desperation. In response, Obama talked about Gitmo in terms of efficacy — citing cost and image, which only indirectly relate to the plight of those who have been cleared. He then blames Congress for not letting him close Gitmo. Then ultimately he admits that Gitmo amounts to keeping “a hundred individuals in a no man’s land in perpetuity.”

Now, at that point, someone should have asked whether he admits that military commissions aren’t working. Because one of the things that is keeping the actual terrorists in no man’s land is the failed MC system.

But Obama doesn’t answer the question, really, about hunger strikers directly. When the reporter asks again, Obama suggests that the problem — why are we doing this — is that his Administration has not been permitted to try detainees in civilian courts.

why exactly are we doing this. Why are we doing this?

I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country

He ends by repeating that he needs Congress’ help.

Now, Obama does need Congress’ help to close Gitmo. He needs Congress’ help (though didn’t, when Eric Holder initially decided to try the 9/11 plotters in NY) to try the actual terrorists in civilian courts, to get them in Florence SuperMax in cells down the hall from Faisal Shahzad and Umar Farouk Abdulmutallab, whom he cites.

But most of the detainees at Gitmo won’t ever be tried in civilian courts, either because they were tortured so badly they couldn’t be tried without also admitting we tortured them (and, presumably, try the torturers), or because we don’t have a case against them.

Trying detainees who don’t pose a threat in civilian courts won’t solve the problem as they’re not guilty of any crime.

Moreover, Obama dodges what his Administration has done himself to keep detainees in Gitmo, notably the moratorium on transferring detainees to Yemen and the appeals of Latif and Uthman’s habeas cases so as to have the legal right to keep people based solely on associations and obviously faulty intelligence documents.

Obama doesn’t mention that part of Gitmo’s legacy. Obama says 10 years have elapsed and we should be able to move beyond the fear keeping men at Gitmo.

3 years have elapsed since he issued the moratorium on Yemeni transfers; 19 months have elapsed since he killed Anwar al-Awlaki, purportedly (though not really) the big threat in Yemen. It’s time to move on in Yemen, as well as generally.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

32 replies
  1. Brindle says:

    Psychologist Theodore Million divided Anti-Social Personality Disorder into five subgroups, the one headed by “Malevolent” seems to describe Obama, especially the last six or seven words/phrases.

    —“Malevolent (including sadistic and paranoid features) Belligerent, mordant, rancorous, vicious, malignant, brutal, resentful; anticipates betrayal and punishment; desires revenge; truculent, callous, fearless; guiltless.”—

    http://en.wikipedia.org/wiki/Antisocial_personality_disorder#Theodore_Millon.27s_subtypes

  2. bsbafflesbrains says:

    @Brindle: It’s a question where he would be diagnosed on a sliding scale. The inverse conscience and perverted logic he uses fits closer with Narcissism in either the paranoid or aggressive form IMO. He seems to derive pleasure from other peoples pain, an actual dopamine rush common for narcissists.

  3. peasantparty says:

    Marcy, good job on this piece and for including the moratorium. The Senate Judiciary sub-comm hearing where everyone expressed disappointment over the Administration not sending a witness after they rescheduled it a week futher out; could that moratorium have something to do with it?

    I thought so, especially because Al-Muslimi testified. His words were horrible for an American to hear. I keep thinking how we would feel here in the US if drones were always hovering over us and nobody knew when the bomb would drop. That upset me so badly I couldn’t keep up with my routine.

  4. peasantparty says:

    @peasantparty: For those that don’t know, Farea Al-Muslimi was educated in an American High School through a State Department student exchange. He lived with an Air-Force family. He is now at home in Yemen, in his small home village where the drones fly constantly. The people have no idea who the American drones are looking for, therefore they cannot stay away from a target without that knowledge.

  5. harpie says:

    Marcy, have you looked into the following at all? I’d be interested in your opinion.

    This is attorney Tom Wilner [Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008] about section 1028 in the 2012 NDAA:

    What you missed: the NDAA allows the President to release prisoners from Guantánamo

    Section 1028 of the NDAA changed the law and eased the transfer requirements. Although that section of the new law retains essentially the same certification requirements mentioned above, it now explicitly allows the Secretary of Defense in consultation with the Secretary of State to waive those requirements by finding
    […]
    Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.

    This past March, Andy Worthington noted this provision in his plea to release Shaker Aamer, and that

    that waiver has not been used.

    Here is a 1/20/12 letter from 15 Admirals and Generals [Ret], asking the Obama administration to use the waiver.

    […] We ask that you direct your administration to exercise this authority immediately and fully to demonstrate your good faith commitment to closing Guantanamo. Doing so is the first step among many needed to finally close this dark chapter in our history. […]

    We know the Obama administration knows how to use waivers.

  6. harpie says:

    [Another form of this comment is in moderation with admittedly a LOT of links, so I thought I’d post it this way for now. If the other comes through, and you want to cancel this one, please do.]

    Marcy, have you looked into the following at all? I’d be interested in your opinion.

    This is attorney Tom Wilner [Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008] about section 1028 in the 2012 NDAA:

    What you missed: the NDAA allows the President to release prisoners from Guantánamo

    Section 1028 of the NDAA changed the law and eased the transfer requirements. Although that section of the new law retains essentially the same certification requirements mentioned above, it now explicitly allows the Secretary of Defense in consultation with the Secretary of State to waive those requirements by finding
    […]
    Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.

    This past March, Andy Worthington noted this provision in his plea to release Shaker Aamer, and that

    that waiver has not been used.

    Here is a 1/20/12 letter from 15 Admirals and Generals [Ret], asking the Obama administration to use the waiver.

    […] We ask that you direct your administration to exercise this authority immediately and fully to demonstrate your good faith commitment to closing Guantanamo. Doing so is the first step among many needed to finally close this dark chapter in our history. […]

    We know the Obama administration knows how to use waivers.

  7. justbetty says:

    Keep Guantanamo open as required by law but release all the prisoners, simple as that. Who won’t let him, the Saudis?

  8. beowulf says:

    1. Restore diplomatic relations with Cuba.
    2. Negotiate a per-person babysitting fee.
    3. Walk detainees out the front gate of Guantanamo Bay.
    4. The End.

    Its a police state. On an island. They’re not going anywhere.

  9. Roman Berry says:

    Just to be clear, what Obama actually means when he says he wanted to close the detention center at Gitmo is that he wanted to relocate the detention center at Gitmo to some place other than Gitmo. It was a “let’s remove the problem by relocating it from the place it is associated with and recreate it elsewhere approach.”

    As far as the force feeding, just more excuse making. What the US is doing is illegal. And as far as what Obama said back in 2007 or 2008…well…Obama said lots of things in 2007 and 2008, very few of which he actually seems to have meant.

  10. TarheelDem says:

    Americans allowed it to happen to punish “the perpetrators”, which was an irrational action because “the perpetrators” committed suicide in the attacks on 9/11. The amazing thing is that two fundamental facts about 9/11 have not connected with average citizens:

    (1) Bush did not keep us safe.

    (2) There was no one to punish because they committed suicide.

    Denial of those two facts has driven a whole lot of insanity.

  11. cbl says:

    thank you harpie !

    I came over here because I recalled something about Andy and waivers – not at all surprising someone in this crowd had it teed up –

  12. JTMinIA says:

    @harpie: This needs to be said as many times as necessary until the NYT gets it … because I see the NYT as the home of the remaining Obama defenders. Since Obama has the power to release those held at Gitmo, he is *entirely* responsible for their being there. Period. Whining about congress is a lie. Period.

  13. JThomason says:

    It seems to me its pretty plain what Obama is saying. He doesn’t want to bear the political risk of acting unilaterally pursuant authorization or the authority to release prisoners that the judiciary has acknowledged. He wants some cover, political cover, from Congress. He cites our fundamental principles then shies away from them because pursuing them is not politically expedient. Its shameful.

  14. Jeff Kaye says:

    @harpie and @JTMinlA are totally correct. The Obama administration has it in their power to release every cleared detainee today, this very hour, but chooses for its own reasons not to..

    I found his answer mendacious and cowardly, crafted to mislead.

    He was right about one thing unfortunately, and that is that the US population is tuned out of the torture issue. But was it not Obama who told the country not to look back, eliminated accountability, and went to the Supreme Court to stop more photos of US torture being released.

    Obama in this instance is like Macbeth, who seeing the ghost of Banquo sitting in his chair turns to others and says, “Which of you have done this?”

  15. P J Evans says:

    @Jeff Kaye:
    I assumed he was saying that because he had to fill time, not because he actually wanted to close Guantanamo and release the detainees.
    It’s either that, or he’s too stupid to be president, and I don’t think he’s stupid.

  16. GKJames says:

    There’s a remarkable pathology at work here. Note how Obama speaks not only in terms of helplessness going forward, but he disassociates himself entirely from how we got to the current state of affairs. Just like his assassination campaigns: no crisp white Washington shirt ever gets splattered.

    That the alleged bad guys should get an Article III trial is obvious. As for those admittedly not guilty of anything, Obama should parole them — and their families — into the US and pay whatever the going rate is for the wrongful deprivation of a decade’s liberty (times 3 as punitive damages for having done so willfully and knowingly).

    Then again, we know that, at heart, the problem is cowardice. Hard as it is to believe, the 2008 hope of progress has become a challenge of endurance, as we sit through three more years of barbarism dressed in poetry.

  17. Bart says:

    Why not just tell the guards to open all cells and the main gate one night and let them be absorbed by the people of Cuba?

  18. JohnT says:

    I continue to believe that we’ve got to close Guantanamo. I think — well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

    He seems outraged, seeing as he’s former constitutional law prof I think he should get the Chief Executive of the United States government / Commander in Chief of the Armed Forces of the United States on the phone and tell him the what for

    … oh, wait a minute

  19. What Constitution says:

    Nah, he just mouthed all the right words to get the media to maintain the illusion he actually would like to do something to fix the mess at Guantanamo. Watch carefully for any activity like that, any at all. But maybe bring something along to occupy your time.

  20. orionATL says:

    what president obama said was what he has said consistently:

    there has to be some effective activism from the people and within the congress.

    obama made clear from the beginning, and probably based on his “community activism”,

    that he would not be any cause’s white knight.

    i’m inclined to agree with him.

    what he never seems to have have processed and understood from his ” community activist days is that someone has to lead and that is the job of the community activist,

    and of the president.

    we have a president who needs to lead calls for change,

    who easily could lead calls for change (as he is doing – maybe- with abortion rights and with gun control),

    but who generally fails to lead calls for change with good timing, i.e., unemployment and bank robbery in january 2009.

    in short, we have a cautious, timid, politically cowardly president.

    nonetheless, the president is entirely correct to say the american people and the congress need to make a decision on their own about whether they are comfortable with the abominations of guantanamo of not.

    we have all sat on our butts and said or written “how sad; how unfair”. that has changed exactly nothing in 12 terrible years

  21. Wondering says:

    Lots of vitriol in these comments but has anyone here who understands Constitutional law done research on the limitations of extraterritorial jurisdiction in insular areas. It looks to the average person as if Guantanamo was chosen precisely because not all parts of the Constitution hold sway in such areas and congress does indeed have some responsibility.

  22. GKJames says:

    @Wondering: Agreed, but surely that’s not the end of the discussion. There’s an inherent tension between Congress and the Executive on a matter like this. If there’s a case for assertion of the Commander-in-Chief prerogative, this is it. Let the Supreme Court decide who’s right. (And there’s plenty of slippage in the Court’s decision on insular cases over time. That Congress has a say isn’t dispositive of the question whether’s something that the President can do.)

  23. orionATL says:

    the guantanamo detentions are not a legal matter, not even at the constitutional level. they are a political act and a political problem which uses law as a means to obscure the political motives.

    those political motives are:

    1) to hide the fact that american officials used torture on detainees

    2) to hide the fact that false info from that torture was employed to take america into an invasion and occupation of iraq in order to control its oil supplies.

    3) to hide the fact that many detainees were not guilty of acts of terrorism or of supporting terrorist organizations, but were simply swept up by their own or other foreign governments, sometimes for cash paid by american security officials.

    the use of the military to hold, guard, and try detainees serves the purpose of controlling and curtailing whatever information might come out in any detainee trial.

    the president was saying, in effect, that the detainees have no substantial political constituency that he need pay attention to.

    consider the constituency:

    – emptywheel and her website have written extensive;y, persistently, and analytically about the detainees and their physical and legal plight. likewise firedoglake has had some coverage.

    – reporters like carol rosenburg of the miami herald and spencer ackerman, together with a few others, have followed and persistently reported on the detainees treatment and trials.

    – a core group of lawyers have represented the detainees for over a decade,

    – a few military officials have criticized the detainees legal treatment under the military justice system,

    – there may be a few political activists to whom this is a cause.

    out of the tens of millions of adult american citizens, these are the core supporters of fair physical and legal treatment for the guantanamo detainees.

    some of the rest of us say: “this is terrible”, but we don’t act.

    our political leaders don’t act; in fact, are terrified of acting.

    primarily because they would have to take on the right-wing noise machine in a persistent knock-down-drag-out fight. democratic leaders these days just don’t do things like that.

    and it is because they would have to challenge the societal laws controlling socially acceptable political speech.

    so we have the decade-long political stalemate resulting in the interminable and unconscionable confinement and psychological, at least, torture of the remaining detainees.

    this will change only when the existing political order in this country is destroyed.

  24. rg says:

    @Bart: Bart, I had to laugh at your remark (@21). My first thought was about how arrogant it would be towards the Cubans. Then I remembered that Castro once did something similar to us; recall the Marialita (sp?) boat people. Castro allowed a large group of criminals to escape to boats headed to the US with emigrating political refugees.

    As a general comment, I knew that the “closing of Gitmo” was a political ploy aimed at liberals because the naval station at Guantanamo, Cuba is a strategic location in the midst of the Caribbean sea, close to Mexico, the northern shore of South America, and the open waters of the Atlantic. There is a deep harbor that functions as a submarine base. The nearest Mainland alternatives are Tampa Bay, or Jacksonville, FL. The US has a 99 year lease on the property, and it would be idiotic to close the facility. What is needed is simply to stop using it for a torture and prison facility.

  25. rg says:

    @Wondering: Wondering
    Re: the phrase “limitations of constitutional jurisdiction in insular areas”, could you elaborate. Not being studied in this area, my general belief has been that the constitution applies wherever the American flag flies, including consular facilities and certainly at Guantanamo Naval Base. Is this wrong?

  26. orionATL says:

    the constituency concerned about the plight of guantanamo detainees is much larger than i understood:

    http://www.guardian.co.uk/world/2013/may/01/guantanamo-bay-chief-prosecutor-obama-petition

    all it took to energize these folk was some outspoken leadership.

    politically, with respect to the behavior of the obama admin, this matter is beginning to look like the bradley manning matter at quantico. look for the defense dept to suddenly realize there is a problem.

  27. beowulf says:

    @rg:
    “The US has a 99 year lease on the property”

    You’re thinking Hong Kong, US treaty with Cuba (or treaties plural, 1903 treaty amended in 1934) has no time limit on lease, it continues for as long US doesn’t exercise its unilateral termination rights (and it continues to proffer its $2,000 annual rent check– which Cuba hasn’t cashed in decades).

    If walking detainees out the front gate of Guantanamo is too complicated, surely Putin will take them… if the price is right.

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