Last week, a Congressional oversight committee explored the emerging details of the deadly assault on the U.S. mission in Benghazi, and President Obama promised to find those responsible for the death of U.S Ambassador Christopher Stevens and three other Americans. The greater challenge, however, may be what the president does after the perpetrators are found.
More than a month later, it remains uncertain whether the White House will respond to the attack as a criminal act or an act of war, a critical legal distinction that has been unresolved since the first 9/11 attack. Thus far, the FBI has led the investigation of the assault, treating it like a domestic crime for prosecution in U.S. courts. But if the attack was in fact planned and executed by Islamic terrorists, as is increasingly suggested, then some members of Congress are likely to suggest that those responsible should be brought to Guantánamo Bay like other suspected terrorists.
The thought of adding to the ranks of detainees at Guantánamo Bay must be painful for a president who ran four years ago on the promise to close the detention facility. In one of his first Executive Orders in January 2009, Obama ordered an immediate review of the status of each detainee and pledged that all detainees would be either released, returned to their home country, transferred to a third country, or transferred to another U.S. detention facility within one year.
But Obama's pledge, like so much of his agenda, would soon be overtaken by political realities. Six months after the Executive Order, rather than wait for the Justice Department to complete the detainee review, Obama's Chief of Staff Rahm Emanuel cut a deal with Senate Democrats. Fearing political backlash for housing terrorists in their districts if the White House pursued civilian trials, Congress agreed to lift the total ban on transfers from Guantánamo, but essentially foreclosed domestic trials and resettlements by requiring 45 days notice before any prisoner could be moved.
The deal marked the beginning of the end for the president's promise on Guantánamo. According to Daniel Klaidman, author of the book Kill or Capture: The War on Terror and the Soul of the Obama Presidency, Attorney General Eric Holder and his Justice Department were in a losing battle against political minds who were "far more attuned to the beating heart of the country on the issue, and far more willing to exploit citizens' fears." Emanuel, convinced that holding civilian trials for detainees would derail the president's domestic agenda, went so far as to enlist Republican Senator Lindsay Graham to undermine Holder's plan to try Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks, in a Manhattan federal court. Congress then used the 2011 National Defense Authorizations Act to strip the executive's authority to try detainees in civilian courts and ended the goal of closing the facility during Obama's first term. Unfortunately for Obama, many Americans have never heard the full story and instead see another broken promise on the president's record.
In fact, the Justice Department's review of Guantánamo detainees, which continued even after the Congressional deal, has resulted in 68 detainees cleared of any charges being repatriated to their own countries or resettled in third countries since 2009.
But progress is once again stalled -- and Obama is not without blame. In a federal court filing on Sept. 21, 2012, the U.S. government made public a list of 55 Guantánamo prisoners who have been cleared for release or transfer for more than three years. They remain at Guantánamo however, because of difficulties finding a country willing to take them or because of concerns about sending them to their home countries. The list did not include a group of cleared Yemeni detainees; President Obama banned further returns of detainees to Yemen in January 2010. And not on the list, of course, is Adnan Latif, a Guantánamo detainee who died in his cell in September despite having been repeatedly approved for release. This week's decision in the Hamdan case threatens to increase the ranks of cleared detainees held at Guantánamo by nullifying one of the key statutes under which the U.S. government prosecutes detainees.
Whatever your feelings about Obama's failure to navigate the political backlash from his efforts to close Guantánamo, the illegitimacy of these continued detentions undermines America's national security in the same way that it did during the campaign four years ago. We certainly shouldn't exacerbate the problem by adding to the numbers there with Libyan detainees.
Instead, recognize that many of those who remain at Guantánamo are there because Congress believes that the American people no longer care about this issue. When you go to the polls this November, remind your congressperson that you believe those cleared of wrongdoing deserve their freedom. Tell your representatives that you believe that the American justice system and the civilian courts are capable of punishing those who are guilty of even the most heinous terrorist acts. When you vote three weeks from now, elect someone who has the courage to end this shameful episode in American foreign policy.