On the front page of its Memorial Day weekend edition last Friday, USA Today ran an arresting article under the headline: From Boyhood to the Battlefield. The photo of a young boy with a baseball bat over his shoulder, staring forthrightly into the camera, promised a feel-good holiday story, a promise quickly dashed by the headline’s smaller type: “These children of 9/11 died fighting its war.”
The article profiled three young men, too young at the time to have grasped the import of the events of Sept. 11, 2001, who eventually felt the call to military service. Each died this spring in Afghanistan.
The article made no mention of President Barack Obama’s speech the previous day, in which the president declared that “this war, like all wars, must end.” Clearly, the editors planned and scheduled the story some time ago, not in response to the president’s speech at the National Defense University. But if anything could underscore the urgent necessity of the recalibration the president called for, this was it.
President Obama’s articulation and defense of his policy on targeted killing by drones got the most attention. I was equally interested in what he had to say about the Guantánamo Bay prison in Cuba, where most of the 166 detainees are on a hunger strike. What the president said was not particularly new: Guantánamo is terrible advertising for the United States; he wants to close it and bring the detainees into the United States for trial and maximum-security imprisonment; and Congress won’t let him.
“There is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened,” the president said in obvious frustration, speaking an obvious truth. What occurred to me is that he, too, has become a prisoner: imprisoned not at Guantánamo but by it.
To test the validity of this observation, it’s worth looking back at the speech President Obama gave almost exactly four years earlier, at the National Archives on May 21, 2009. That speech was in many ways the more challenging assignment, a more audacious staking of ground.
The president, in office only four months, was untested on national security. Osama bin Laden was still at large. The war in Iraq was grinding on. There was no exit strategy in Afghanistan. In contrast to the decimated terrorist leadership the president depicted last week, he referred back then to the “nimble enemy” the country faced.
Yet despite those daunting circumstances, the new president’s tone four years ago was not only forceful but hopeful. There were 240 prisoners at Guantánamo then. He had earlier ordered the prison camp closed within one year, and that goal appeared well within his grasp. In the speech, the president outlined a multipart strategy: transferring detainees to domestic prisons; bringing as many as possible to trial in federal court; releasing those whom courts had already ordered freed; sending others to custody and eventual release in other countries; reserving military commission trials for those charged with violating the laws of war.
It all sounded, on that long-ago spring morning, not exactly simple, but straightforward and achievable. “As president, I refuse to allow this problem to fester,” Mr. Obama said, adding: “Our courts won’t allow it.”
Except, of course, that the courts did.
There are many reasons Guantánamo is still with us: cynical Republicans who conveniently forgot that closing Guantánamo was once a bipartisan goal (President Obama saw around that corner, warning in his speech about “the fear-mongering that emerges whenever we discuss this issue”); timorous Democrats who failed to provide him with cover when things got hot; disputes within the administration that resulted in squandered momentum; understandable concern about releasing detainees from Yemen, the biggest group among 23 nationalities represented at Guantánamo, into the chaos there. (In last week’s speech, the president announced that he was lifting the moratorium on transfers to Yemen.) The military commission system bogged down hopelessly; while President Obama expressed wonderment in 2009 that the system had produced only three convictions, four years later it has yielded only four more, and several of those remain tied up in appeals.
And then there were the courts. There are two courts that have mattered in this saga: the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court. I don’t mean to suggest that judges and justices have been the main barriers to clearing out Guantánamo. But their role — more precisely, with respect to the Supreme Court, absence of a role — has played and continues to play a part that shouldn’t be overlooked as discussion resumes about the future of the island prison.
It will be five years next month since the Supreme Court has had anything to say about Guantánamo. In June 2008, the court decided Boumediene v. Bush, declaring that Guantánamo detainees had a constitutional right to challenge their confinement by means of habeas corpus petition in federal court. The court was divided 5 to 4, and the dissenting opinions were vigorous, but Justice Anthony M. Kennedy’s strongly worded majority opinion appeared to have some teeth.
In the first two years following Boumediene, the majority’s message seemed to resonate as federal district judges within the D.C. Circuit took seriously Justice Kennedy’s injunction to “conduct a meaningful review” of the basis for each detainee’s continued imprisonment. In those years, the trial judges granted habeas corpus petitions more often than not — 20 of the first 34 petitions. In ruling for the detainees, the judges typically found that the government’s evidence didn’t even meet the low standard of proof required — “preponderance of the evidence,” meaning only “more likely than not,” a far cry from the criminal-trial standard of “beyond a reasonable doubt.”
This pattern changed in mid-2010 when the appeals court, in Al-Adahi v. Obama overturned a grant of habeas corpus and instructed the district judges to take a more forgiving approach to the government’s evidence. A case against a detainee typically involves numerous elements such as the individual’s travel history, connections with others, motivation and circumstances of capture. In the Al-Adahi case, the appeals court instructed the district judges not to require the government to prove every allegation — not to require every piece of the puzzle to fit — but rather to look at the evidence as an integrated whole. The Supreme Court denied review in early 2011.
The Al-Adahi ruling figured to be a game-changer, and it was. The rate of habeas corpus grants plummeted as the district judges absorbed the message. Of the next 12 petitions, only one was granted, and the D.C. Circuit reversed that decision. In its ruling in that case, Latif v. Obama, the appeals court established a still more deferential standard for reviewing the government’s evidence. Judges should presume that the government’s evidence was reliable, the appeals court ruled, in effect shifting to the detainee the burden of refuting that presumption.
Last June, the Supreme Court refused to review the Latif decision. Several months later, the detainee, Adnan Farhan Abdul Latif, a Yemeni who had been held at Guantánamo for 10 years, was found dead in his cell of an overdose of psychiatric medication, a possible suicide. When Mr. Latif had been captured by Pakistani police near the Afghan border in 2001, he claimed to have left Yemen in search of medical care for a head wound suffered in a car accident. He had his medical records with him, and no weapon. In granting his petition for habeas corpus in the ruling that the appeals court overturned, Federal District Judge Henry H. Kennedy Jr. had found Mr. Latif’s account plausible and the government’s evidence to the contrary “not sufficiently reliable.”
It bears noting that the Obama administration has not been a passive observer of these developments. Most of the time, when habeas corpus has been granted, the Department of Justice has not only appealed to the increasingly friendly D.C. Circuit but has also opposed the detainees’ efforts to obtain Supreme Court review. (One major appeal in a military commission case will be argued before the D.C. Circuit in September. ) In the one case since 2008 that the justices did agree to hear, the Obama administration changed the facts in a way that led the Supreme Court to dismiss the case.
That case, Kiyemba v. Obama, was an appeal brought by a group of Uighurs, Chinese Muslims who had taken refuge in Afghanistan from Chinese persecution before 9/11 and who were sold for a bounty to the United States military in the chaos that followed. The Bush administration had eventually conceded that the Uighurs had never been enemy combatants, but it appealed a federal district judge’s decision ordering them released into the United States.
The D.C. Circuit overturned that ruling and the Supreme Court agreed in mid-2009 to hear the Uighurs’ appeal, over the opposition of what was now the Obama Justice Department. In February 2010, two days before its brief was due at the court in advance of the scheduled argument, the administration managed to persuade the Swiss government to admit the two remaining Uighurs for whom no other home had been found. The justices then dismissed the case, thus avoiding — and permitting the Obama administration to avoid — a potentially consequential clash of executive and judicial authority.
And still Guantánamo festers. And yet, although the president’s speech last week drew the usual negative responses from the usual suspects it could well be that time, at last, is on his side. Polls in recent weeks indicate that public opinion is shifting, for the first time since 9/11, on the appropriate balance between individual liberty and national security. A Fox News poll last month found more people unwilling than willing to sacrifice personal freedom in order to reduce the threat of terrorism. A Washington Post poll, also last month, found more people worried that the government would go “too far in compromising constitutional rights in order to investigate terrorism” than worried that the government wouldn’t go far enough. A Rasmussen Reports poll, conducted, as were the others, after the Boston Marathon bombing, found a majority of the respondents more worried about the economy than about terrorism.
What this suggests is there are, finally, diminishing returns for political demagoguery on Guantánamo and other terrorism-related issues. In his speech last week, President Obama invited the American public to reclaim its pre-9/11 equilibrium — not by assuming that the country faces no threat at all, but by recognizing that the threats it faces have been and can be managed smartly. If the public accepts that invitation, we will see not only Guantánamo closed, but the president himself freed from Guantánamo’s chains.