Imitation, it’s been said, is the sincerest form of flattery.
Where Gitmo is concerned, former President Bush should feel somewhat flattered.
Even if President Obama didn’t plan it that way.
One year after signing an executive order to close the Guantanamo Bay Detention Facility today, Mister Obama finds himself where Bush was in two key respects: he intends to close the prison but can’t say when; he will hold dozens of suspected terrorists in custody without trial.
“One question that raises, of course, is whether the Obama administration is drifting toward a policy very similar to the one that the last president articulated,” said Benjamin Wittes of the Brookings Institution. “Once you remove the deadline and you say, ‘We’re not merely gonna miss it by a few days, we’re missing it by a lot, and we’re not going to tell you when the next date certain is,’ the answer seems to be you’re in a much closer place to that prior policy.”
What went wrong?
“It was two things,” said Charles “Cully” Stimson, former Bush Defense Department head of the Office of Detainee Affairs, now a scholar at the conservative Heritage Foundation. “One, naivety; two, irrational exuberance. They were going to be better stronger and faster than us. They had all the answers.”
One year later, the two biggest answers are just like Bush’s: the closure date is uncertain and a certain number of terror suspects will be held indefinitely and without charges.
The second “answer” infuriates human rights groups and flatly contradicts Obama’s May 21 speech at the National Archives.
“Our goal is to construct a legitimate legal framework for remaining Guantanamo detainees that cannot be transferred – not to avoid one,” Obama said then. “In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war,we will do so within a system that involves judicial and congressional oversight.”
But Obama’s done nothing to negotiate a new law on indefinite detention. Instead, he’s fallen back on the Bush argument that war powers given his administration after 9/11 to fight the Taliban and Al Qaeda in Afghanistan allow for the indefinite detention of terror suspects.
White House officials say Congress won’t pass a new law on detention without trial. The futility excuse does not fly in some quarters.
“The president made a very clear speech in May, saying he was not going to act alone in this,” Wittes said. “Then the administration changed its mind and decided that they’re not going to do it because it’s too politically difficult. I think they deserve a lot of criticism for that. The administration has kind of backed itself into adopting a very unhealthy policy that the last administration had.”
Stimson says the failure to pursue a new law allowing for indefinite detentions could complicate, if not completely undermine, another vow Obama made in his National Archives speech.
“I am not going to release individuals who endanger the American people,” Obama said then.
Stimson fears federal judges may do just that once, as expected, these detainees begin serving time in the maximum security prison in Thomson, Illinois, that Obama has ordered replace Guantanamo.
“If they move those folks to Thomson or somewhere else in the united states, judges will order some of those guys into the united states because they’re rights have not been defined their privileges have not been defined,” Stimson said.
There are 196 detainees at Gitmo now. The Obama administration has released 44. Top officials said today 110 will be sent to other countries, 35 will be tried in U.S. federal courts and roughly 50 will be held without trial.
These numbers reflect a year’s worth of work settling – once and for all – what will become of each and every detainee. On this score, Stimson offers Obama high praise.
“We should give credit where credit is due,” Stimson said. “They’ve done something we didn’t do. They have shared all the information on all the detainees and racked and stacked them in ways that we didn’t. This series of executive orders did serve a good purpose.”
But that praise is cold comfort to a White House that can only regard its extravagant “closed in one year” promise as its most conspicuous first-year policy failure.
“Of course that’s a policy failure,” Wittes said, adding the Democratically controlled Congress deserves some of the blame. “(The White House) has had an exceedingly uncooperative Congress. Many members of both parties have shown themselves much more interested in preventing people from ending up congressional districts than in helping to effectuate an effective national policy. And the administration has not been effective in engaging Congress.”
The White House, still reeling from the loss of the Democrats’ 60th U.S. Senate seat in Massachusetts, is trying to find a new way forward on health care. But analysts say it must also persuade Congress to provide new funds to purchase and retro-fit the prison in Thomson, Illinois.
Stimson, for one, isn’t optimistic.
“This is an election year. There is law in place that prevents detainees from being brought to the United States unless it’s for trial,” Stimson said. “With (Senator-elect) Scott Brown’s victory now looming in the minds of reasonable Democrats, very few are going to vote to import terrorists to the United States.”
Will Gitmo still be open in January 2011?
“I think it’s most likely there will still be people at Gitmo a year from now,” Wittes said.
“Without a doubt, Guantanamo will not close in 2010,” Stimson said.
One thing will be different, though.
“The aspect of this conversation that we will not be having (a year from now) is about unrealistic expectations and deadlines that (the White House) can’t meet. I think that’s a lesson they’ve really learned.”