Last week President Obama stood shoulder-to-shoulder with his predecessor to help celebrate the opening of the George W. Bush Presidential Library and the legacy of President Bush’s eight years in office. A central part of that legacy—much criticized by candidate Obama—was the creation of Guantánamo, an offshore prison in violation of our most basic constitutional and human rights principles. Now in his fifth year in office, Obama has only perpetuated Guantánamo as a symbol of human rights denied by abandoning his promise to close the prison. Today its continued existence is literally a matter of life and death.
For nearly three months, a majority of the 166 men imprisoned at Guantánamo Bay have been on hunger strike. Men have lost over 30 and 40 pounds. Some are skeletal and too weak to move. At least 17 men are being “saved” by being strapped into chairs and force fed through a tube inserted through their noses, down their throats and into their stomachs. In the words of Tariq Ba Odah, one of the Center for Constitutional Rights’ clients, “I am tortured in the restraining chair when they fill my belly with Ensure. All my limbs are restrained and my clothes soaked from vomiting the formula mixed with water and laxatives.”
Why are these men enduring such a painful protest? Our clients have told us. It stems from Obama’s catastrophic failure to end indefinite detention without charge or trial, which, for all but a few of Guantanamo’s remaining 166 prisoners, has entered its 12th year. Obama’s failure feels particularly inexplicable—and unjust—to those 86 men the Obama administration itself has cleared for release from Guantánamo.
Unable to speak out in the face of this injustice, these men protest peacefully with their bodies. They are willing to endure the physical torment of hunger, brutal force feeding, and emaciation because they can no longer endure the psychological torment of unjust and perpetual detention and because the pain of being forcibly held thousands of miles from family is even worse. According to Sabry Mohammed, another man CCR attorneys met with recently at the base, “I don’t want to die, I want to return to my family, but I have been pushed too far.”
Ultimately, Obama’s failure to close Guantanamo is due to an absence of will, not an absence of authority.
After making genuine efforts to act on his promise to close Guantánamo early in his presidency by successfully repatriating or resettling a large number of detained men, including some of our clients (who have not “returned to the battlefield,” as the political right loves to say, but instead have attempted to pick up the pieces of their lives), Obama has all but ignored Guantánamo in recent years. Indeed, in an ominous sign, the administration recently closed the office of the Special Envoy to the Closure of Guantánamo. The aura of indefinite injustice hangs heavier.
The Obama administration has attempted to shift blame for his failure to close the prison onto Congress. It is true that Congress added unnecessary restrictions on the president’s authority to transfer detainees home or to third countries (or even to the U.S. for trial), in the 2011 National Defense Authorization Act (NDAA) and the 2012 version as well. But what is equally clear is that Congress has given the president the authority to waive those restrictions, by invoking the very same criteria the administration itself used to transfer the men before the passage of the NDAA. Moreover, the most direct limitation on his ability to successfully close the prison is self-inflicted: a ban on all transfers to Yemen, which roughly 90 of the men at Guantánamo call home. Imposed following an attempted attack in 2009 by the so-called Underwear Bomber, the moratorium amounts to collective punishment based purely on where they happened to be born. Ultimately, Obama’s failure to close Guantánamo is due to an absence of will, not an absence of authority.
California Sen. Dianne Feinstein recognized this much in sending a letter to President Obama urging him to renew efforts to transfer out the 86 detainees cleared for transfer, which she stressed has taken on greater urgency because of the hunger strike. As she explained to the president, Red Cross monitors who have visited with the men at Guantánamo informed her that their desperation was at an “unprecedented” level.
Obama may be making a simple political calculation: that it is expedient to ignore the men’s plight as well as his own promise to close a shameful chapter in our history. But, in so doing he would be ignoring a more serious moral calculation. Tariq Ba Odah tells us that after more than six years on long-term hunger strike and thousands of humiliating force-feeding sessions, he now weighs just 90 pounds. Our client Ghaleb Al-Bihani is a diabetic who knows his protest carries particular life-and-death implications because of his illness but sees no other choice. These men and others are willing to face death in order to resist the continuing injustice of their detention.
President Obama will no doubt one day open a presidential library of his own. Will his legacy be his willful perpetuation of the human rights travesty at Guantánamo, or will it be even worse? The president must act now, before time runs out for his administration and for the men at Guantánamo.
Baher Azmy is Legal Director of the Center for Constitutional Rights.
The Center for Constitutional Rights has led the legal battle over Guantánamo for the last 11 years—representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country, ensuring that nearly all the men detained at Guantánamo have had the option of legal representation.