Obama's Prisoners at Guantanamo

Martha Rayner in The Wall Street Journal, May 07, 2013

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By MARTHA RAYNER

In 2005, I filed a legal action against President George W. Bush on behalf of clients imprisoned without charges or trial at the military prisons of the Guantanamo Bay U.S. naval base in Cuba. The lawsuit—a habeas corpus petition challenging the lawfulness of imprisonment—was captioned as my clients' names versus President Bush's, who in his role as commander in chief of the U.S. military was my clients' jailer.

In 2009, when Barack Obama became the 44th president, the caption had to change. The case was now against President Obama.

At the time, this felt like a technical necessity of litigation. After all, my clients' harsh detention thousands of miles from their homes, which was designed to avoid the application of the rule of law, was carried out by Mr. Bush. Within days of his first inauguration, Mr. Obama ordered the closure of Guantanamo within one year, so the wrongs of one president were soon to be righted by the next. Barack Obama wasn't my clients' jailer, it was George Bush.

But this is no longer true. President Obama has never owned up to his role as jailer. He has viewed Guantanamo as a problem he did not create or ever support; he inherited the problem, it was thrust upon him. Although Mr. Obama has repeatedly recognized the significant costs of maintaining Guantanamo—the diminishment of U.S. standing in the world, the prison's symbolic value as a recruiting tool for terrorists, and the extraordinary expense and inefficiencies of running the prison—he has never acknowledged Guantanamo as truly his problem and his responsibility.

Mr. Obama's statements at his April 30 press conference displayed this detachment in a particularly troubling and revealing way. First, the president placed responsibility at Congress's door. He inaccurately blamed Congress for the continued existence of the prison, saying "Congress determined they would not let us close it."

This was a reference to the National Defense Authorization Acts of 2011, 2012 and 2013—all of which Mr. Obama signed into law. Although the president is required to make certain security assurances to Congress before transferring men from Guantanamo to other countries, the law does not prohibit him from carrying out such transfers.

Mr. Obama also inaccurately said at the press conference that Congress would not permit him to transfer men even when their transfer was court ordered. The opposite is true. Under the National Defense Authorization Acts, court-ordered releases are exempt from the security assurances otherwise required. Despite his clear authority in this matter, the president cannot seem to accept or acknowledge that he has the power to end indefinite detention without trial.

At the same time that he cast blame on Congress, Mr. Obama distanced himself from responsibility. Referring to the internment of the prisoners, he asked: "Why are we doing this?"—as if it is someone else, not he, who keeps the men at Guantanamo locked up.

In the same vein, Mr. Obama declared, "I'm going to go back to it because I think it is important." His promise to return to the issue of Guantanamo implies that he somehow stepped away from the subject—as if he has played no role in the ever-deeper permanency of this prison. On the contrary, every day Mr. Obama fails to start the transfer process is another day that he affirmatively decides to keep these men locked up.

The courts have made clear that this is Mr. Obama's decision. Three of my five clients were repatriated to their home countries under Mr. Bush's watch; the two who remain have given up on their habeas cases, since the courts have sanctioned indefinite detention without trial and left it to the commander in chief's discretion to determine who should be released and when.

The president's April 30 news conference was an attempt to quell the growing hunger strike at Guantanamo. But his words will drive the men into further desperation. They know it is Mr. Obama who imprisons them. So when the president blames Congress, takes no responsibility for keeping Guantanamo open, and offers tepid claims that he will see what he can do, it means only more of the same for the prisoners.

Mr. Obama must accept that the men held at Guantanamo are his prisoners, not George W. Bush's. As the commander in chief, he and he alone can and must act to end the practice of indefinite imprisonment without a fair trial.

Ms. Rayner is an associate clinical professor of law at Fordham University School of Law.