On Guantanamo, Is Obama a Pragmatist — or That Other P Word?

Morris Davis is the former chief prosecutor at the Guantanamo Bay detention facility in Cuba.

He’s now a professor of law at Howard University Law School and is active in seeking to close down Guantanamo.

On Friday, he was at the New America Foundation in Washington, D.C. on a panel to discuss President Obama’s failure to close down Guantanamo — despite Obama’s promises to do so.

Davis said that for the past couple of years, at the end of the year, Congress has passed the National Defense Authorization Act (NDAA) that has included language prohibiting use of any NDAA funds “to bring anyone from Guantanamo to the United States.”

“And also, if anyone is being transferred out of Guantanamo, they have to do a certification to Congress and notice of the reasons for the transfer out,” Davis said.

“And for two years in a row, the President said he would veto the bill if it passed,” Davis said. “And on New Years eve, it becomes — which is going to drop first, the ball in Times Square or Obama’s veto threat?”

“Two years in a row, the President backed down” and signed the bill Davis said. “He says all the right things about the rule of law, and principles and values. But he has failed to live up to his words.”

“Some people say he’s a pragmatist, but there’s another ‘p word’ I would use to describe what he has done by not standing up and keeping his word and restoring our reputation,” Davis said. (At 54:25 of the New America Foundation video of the event.)

We e-mailed Davis after the event asking what “p word” he was referring to.

“I’ll leave it up to the people in the audience to fill in whatever p-word popped into their minds,” Davis wrote. “There was one in particular I was thinking of, but there are actually a couple that would fit appropriately in the context.”

Later in the program, in response to a question from the audience about what would happen if Obama decided tomorrow to close down Guantanamo, Davis says that Obama could close down Guantanamo, “but it would take growing a big pair.”

Thomas Wilner, a partner at Shearman & Sterling in Washington, D.C., agreed with Davis.

Wilner was the attorney for Guantanamo detainees in Rasul v. Bush, decided in June 2004, in which the Supreme Court ruled that the detainees have the right to habeas corpus, and counsel of record in Boumediene v. Bush, decided in June, 2008, in which the Supreme Court held that the Guantanamo detainees’ right to habeas corpus is protected by the U.S. Constitution.

 Wilner also represented the Organization of the Petroleum Exporting countries in antitrust actions brought in the United States.

Wilner agreed with Davis that Obama needs to “grow a pair of big ones.”

“He’s got to push it — there are problems, but it is doable,” Wilner said.

He needs to become more like President Abraham Lincoln, Wilner said.

“Lincoln couldn’t just say — I’m not going to allow slaves anymore,” Wilner said. “He needs to work it through a democratic political process here that is difficult — but you’ve got to work it. But you couldn’t do it (close down Guantanamo) tomorrow. There are a certain number of people who can’t go back to Syria, who can’t go back to China. Others who really can’t go anywhere. They may need to be kept in the United States for a while.”

“If they are kept in the United States for a while, we could effectively challenge the detentions of those people who are being detained,” Wilner said. “You need to work it, but you have to be committed to working it and get them out of there. The fact is, Obama hasn’t done that.

“There is no political value in doing it — it’s got to be a moral imperative,” Wilner said.

Wilner criticized a New York Times op-ed that ran last week by Jennifer Daskal titled — Don’t Close Guantanamo — in which Daskal argues that if we close Guantanamo now, some of the prisoners will be held in Supermax prisons in the United States where conditions will be worse than in Guantanamo.

“But Guantanamo is a Supermax prison,” Wilner said.

“Conditions (at Guantanamo) are terrible,” Wilner said. “They are in a place where they are isolated and can’t see their families. In a Supermax facility in the United States, they can see their families. In Guantanamo, they haven’t seen their families for eleven years. They are allowed a call now once a month. But if they were in the US, they would get to see their families.”

“While they are in Guantanamo, they are within the jurisdiction of the DC Circuit,” Wilner said. “The reason they can’t challenge their detentions is the DC Circuit has adopted a rule that says you lose your habeas corpus case if the government has any evidence against you that is credible. That’s an absurd rule. If they were somewhere else, they would be in a different Circuit and you could challenge their detention.”

“The DC Circuit interpretation of what habeas means would have allowed Nazi Germany to hold people in concentration camps because they say any evidence presented by the government must be accepted,” Wilner said.

“Indefinite detention is not legal under US law,” Wilner said. “There needs to be a basis for it. If there is no basis for it, other Circuits might (free the men).”

Wilner said that “there are some lawyers who benefit from Guantanamo being open.”

“It gives them a source of employment, it gives them notoriety,” Wilner said.

He did not identify the lawyers he was referring to.

As for the human rights organizations who oppose closing Guantanamo — “they say it will import indefinite detention to the United States — it’s just wrong thinking, it’s wrong headed thinking.”

“This is President Obama’s legacy,” Wilner said.

To President Obama, Wilner implored — “You could do it, you could get it done.”

“Make it a priority, work the problem and get it done. Put someone in charge at the White House of doing it. This is a moral issue that defines our nation. It will define your Presidency. You will be to blame if this isn’t done. Get it done.”

Filmmaker, and activist Andy Worthington is author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

Worthington said that over half of the prisoners at Guantanamo have been cleared for release.

“These are not people who are needed to be held because they pose a security risk,” Worthington said. “The United States went to a very high level process saying — we don’t want to hold you any more. In some of the cases, these men were cleared as long ago as 2004. Just think about what it means to be the government — to clear people for release from Guantanamo and then don’t release them.”

“Indefinite detention without charge or trial is an abomination — legally, morally, ethically and spiritually,” Worthington said. “Indefinite detention without charge or trial is the reality for nearly all the men who are held at Guantanamo. And it will be for the foreseeable future unless we can act on that. We can very obviously begin by highlighting and acting on the most obvious form of injustice — clearing people for release and not releasing them.”

“We’ve raised a generation that has only known a post 9/11 world,” Davis said. “It has become the new normal. Twenty years ago, if someone was feeling your groin at the airport, that wasn’t called pre-boarding, it was called sexual assault. During the Bush administration, polls showed that the majority of Americans were opposed to torture. Polls now show that Americans are okay with torture. The public largely could care less about Guantanamo.”

Davis said he didn’t know of a “bigger fiscal waste than Guantanamo.”

The Guantanamo detainees cost upwards of $139 million a year — that’s $855,000 per prisoner per year, Davis calculated.

He said that in maximum security in the United States in a federal prison, the cost is $30,000 per prisoner.

“Guantanamo is a blight on our reputation,” Davis said.

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