President Obama’s powerful indictment of the continuing scandal that is the U.S. prison at Guantánamo Bay is an encouraging sign that he hasn’t forgotten his campaign pledge to close the facility. But to suggest that his hands are tied is misleading.
Yes, a politically motivated Congress has thwarted the president’s plan to move detainees to the mainland and otherwise has sought to obstruct his efforts to move them out of Guantánamo by placing onerous restrictions on transfers and prohibiting trials in federals courts.
Yes, the role of the judiciary has been inconsistent. The courts have held their ground against the most extreme claims by the executive. But no Guantánamo detainee has ever won a habeas corpus case before the Circuit Court of Appeals for the District of Columbia, the main venue for cases brought by detainees. Some frustrated attorneys feel the path of judicial relief is blocked.
Yet that doesn’t mean Mr. Obama is powerless to take decisive action in the face of a desperate hunger strike staged by 100 of Guantánamo’s 166 detainees.
• For starters, the president can direct his agencies to stop blocking detainees’ access to their lawyers. Last year, District Judge Royce Lamberth labeled the government’s attempt to devise new rules on access “an illegitimate exercise of executive power.”
This week, Judge Lamberth was obliged to complain again about “the continuing erosion of counsel access at Guantánamo,” citing non-delivery of legal mail and curtailed flights to the prison. This should be a test of the president’s sincerity regarding Guantánamo: Call off the dogs. Order government attorneys to cease the unfair effort to undermine the detainees’ right to effective legal help.
• Repatriate low-risk detainees. This is a critical step. The 2013 National Defense Authorization Act allows the transfer of detainees if the Defense Department secretary certifies that it’s in the interest of U.S. national security and that measures will be taken to reduce the risks. The president can do that now for the 86 detainees already cleared. About 56 of them are from Yemen, which remains a dangerous country, but President Abed Rabbo Mansour Hadi has improved security to the point that the administration can explore the possibility of renewing detainee transfers.
The president can revive this dormant process by naming someone to fill the vacant State Department seat of the negotiator for detainee transfers. As a gesture of commitment — if he is truly committed — he can appoint a ranking official to cut through the red tape of the national security bureaucracy to accelerate the process.
• Create the Periodic Review Boards he promised two years ago to examine the basis for continued detention of the rest, the so-called indefinite detainees. The International Red Cross says the Geneva Conventions require these boards for facilities like Guantánamo. The failure to establish them indicates that, for all the president’s fine words last week, his only goal is to maintain the status quo.
Sending more medical corpsmen to keep hunger strikers alive is no solution for the fundamental problem at Guantánamo — the absence of hope for detainees deemed worthy of repatriation.
For hard-core terrorists among the prisoners, a longer-term solution must be devised. But for the rest, only the renewal of the review and transfer process will break the strike. Without hope, most detainees will conclude that the only way to leave the island is in a body bag.