June 24, 2012
When President Barack Obama was elected president, he and his administration planned to overhaul Bush detention policies and repair America’s image in the world. This specifically included ending torture, ensuring terror suspects were given due process and no longer indefinitely detained and closing the infamous Guantanamo Bay prison in Cuba. However, the politics of pushing for reforms to counterterrorism policies, which would ensure America was abiding by the rule of law, were detestable to Republicans. The Obama administration had no political will to create a counter-narrative to fear mongering by lawmakers on Capitol Hill. The options for closing Guantanamo became limited and people the administration knew to be innocent remained imprisoned at Guantanamo.
Daniel Klaidman’s book, Kill or Capture: The War on Terror and the Soul of the Obama Presidency, tells this story. While sections of the book that reveal how the Obama administration uses drones for targeted killings have received focus in the media, the thread, which runs throughout the book, is the Obama administration’s failure to close Guantanamo. It is this thread that makes the book the most compelling because the failure ultimately leads to Obama’s pragmatic solution to expand the use of a "kill list" to execute terror suspects abroad.
Taking the "Path of Least Resistance"
In Obama’s first days in office, then-White House counsel Gregory Craig convinced Obama to sign executive orders that directed the Central Intelligence Agency (CIA) to shut down its network of secret prisons and close Guantanamo. Craig, a liberal idealist, supported many of the demands of civil liberties and human rights organizations that were made in the run-up to Obama’s election. They told Craig that Guantanamo could be closed in six months. The military said it needed eighteen months. In an act of "transactional politics," Craig gave the administration one year to close Guantanamo, a deadline that Secretary of Defense Robert Gates called "ambitious" but "the right one."
As the deadline approached, it became increasingly clear Guantanamo would not be closed. Obama was constantly playing for time "in the ever-diminished hope that the politics might eventually turn his way." He took a "tepid approach" to opposition to Guantanamo from Republicans in Congress. He was passive and only wanted to take the "path of least resistance." He also had a chief of staff named Rahm Emanuel, who found Obama’s commitment to close Guantanamo to be more of a liability than something that could help Obama politically.
"By early June , Emanuel could see that the administration was losing Congress over detainee issues," writes Klaidman. Appropriation bills had been passed in the House and Senate restricting the transfer of detainees at Guantanamo. He decided to "cut the White House’s losses" and, without informing Attorney General Eric Holder and the Justice Department, he negotiated a deal with Senate Democrats to give Capitol Hill "forty-five days’ notice before any prisoner could be moved" if Congress lifted the "total ban on transfers."
Holder, as Klaidman reports, took an interest in brutal CIA "interrogation regimes" that had been in place at secret prisons like the Salt Pit just outside Kabul, Afghanistan. He read classified reports that described how a detainee, Gul Rahman, had frozen to death in his cell after being "left shackled and hanging naked from the waist down in a cold, dark cell." He wanted to launch a full investigation but didn’t think the White House would approve. When Obama decided to release interrogation memos, he hoped "the revelations graphically described in the legal opinions would stoke national outrage, reframe the debate and help build support on Capitol Hill for an investigation." In the early spring of 2009, he announced in the Situation Room that he was "contemplating launching an investigation into the Bush administration’s brutal interrogation practices." Emanuel and David Axelrod both thought Holder’s "quest for redemption" was "narcissistic and self-aggrandizing at the expense of the president." So, a rivalry developed between Emanuel and Holder and, when Emanuel went behind his back and stirred up opposition among Democrats in June, Holder was "livid." He knew Emanuel’s "end run" would make it even harder for the administration to close Guantanamo.
Part of this uncontrollable backlash was a result of administration plans to release and transfer innocent Chinese Uighurs—Muslim separatists who could not return to their home country because if they did they would face inevitable persecution. Craig and others in the Obama administration saw these men as an opportunity to "drive a knife through the myth that all of the detainees at Guantanamo were dangerous, hardened terrorists." They thought a few of them should be allowed to resettle in the United States and this would help convince other countries in the world to help the US resettle detainees. But, one Republican, Rep. Frank Wolf, was vigorously opposed and said, "These terrorists would not be held in prisons, but they would be released into your neighborhoods. They should not be released into the United States. Do members realize who these people are?"
Wolf, reports Klaidman, led a "fear-induced insurrection" that put Obama in the position of having to expend political capital in order to close Guantanamo. Emanuel would not let the administration fight back. "Guantanamo [is] just a pain-in-the-ass distraction," he told Craig. "It’s not a move forward issue. It’s a clean up the last guy’s mess issue." Only a few Uighurs, who Bermuda agreed to take, were released. The cold-eyed pragmatist, Emanuel, who Obama had appointed his chief of staff, and Axelrod won against the more idealistic members of his administration like Craig and Holder. As Craig reacted, the failure was a demonstration that "the administration did not really have the political will to deal with Guantanamo."
Obama vs. the ACLU
Klaidman’s book makes it obvious that Obama was keenly aware of criticism from the American Civil Liberties Union (ACLU), which was taking action against Bush counterterrorism policies in the courts. For example, in February 2009, the ACLU was involved a lawsuit brought on behalf of five people who were victims of the CIA’s extraordinary rendition program and transported to secret detention sites. The administration, "to the surprise of the judges," advanced a state secrets argument to prevent the case from moving forward that was similar to what Bush had advanced.
As Klaidman details:
…Obama had campaigned to make government more transparent and to show more deference to Congress. Now he seemed to be embracing the Bush-Cheney agenda of secrecy and maximalist executive power. The move provoked uproar among liberals and civil libertarians. To make matters worse, Obama only learned about it after the fact, from the front page of the New York Times. He was furious. The story contained a biting statement from Anthony Romero, the head of the ACLU, "This is not change. It’s more of the same," Romero charged. "What the fuck," Obama squawked, in one of his earliest "whiskey tango foxtrot moments" (National Security Adviser Jim Jones’s code for Obama’s use of "WTF.") "This is not the way I like to make decisions," he icily told an aide. At a February 20 Oval Office meeting, Obama pushed his lawyers to find a commonsense middle ground: "There should be a way to let cases go forward without revealing state secrets," he said, prodding them to "think proactively" and be "surgical"…
But, as much as he thought cases should be allowed to move forward, he despised these legal challenges. "For Obama it seemed that not a single day passed without one of his lawyers stopping by to present him with some new legal crisis to be decided on the spot," Klaidman writes. One time, Katie Johnson, a secretary, informed him that the legal team needed to see him about "some urgent matter." Obama reacted, "It’s another one of these damn litigation decisions they want to talk about, and I’m tired of it." Scowling, he said, "I’m tired of being jammed this way."
The ACLU was one of the few groups doggedly promoting advocacy and action to ensure Obama kept campaign promises. What could be so wrong about ensuring those who alleged they had their civil liberties or human rights violated were vindicated in a court of law? What could be so appalling about efforts to ensure government returned to following the rule of law? The issue was the "zero-sum political environment" Obama saw himself presiding over. The ACLU was the opposing "extreme" to people like South Carolina senator Lindsey Graham, who "refused to acknowledge the validity" of positions taken by people within the ACLU. He viewed the ACLU as "absolutists who saw the slightest loosening of their agenda as an inevitable slide toward authoritarianism." The ACLU "ran an ad campaign in 2010 that featured a picture of Obama morphing into George W. Bush" that particularly irritated him.
All the legal challenges and principled criticism from the ACLU essentially came to be canceled out by the rancor of Republicans. He split the difference, refusing to fight for the release of innocent prisoners and reforming military commissions. He did not rely on the ACLU to reinforce the idealism within his administration. He came to loathe it like a man loathes his conscience just before he is about to carry out a premeditated crime.
The Constraints of Law and Politics
Failing to close Guantanamo, as Klaidman’s reporting suggests, not only meant Obama wasn’t going to fulfill a significant campaign promise but it also meant Obama had to overcome a political conundrum. He had ordered the CIA to shut down secret prisons. He had openly called for the Guantanamo prison to be closed. To continue Bush’s "war on terrorism," which the administration wanted to keep going, where would they send detained and captured terror suspects? The pragmatic answer: they wouldn’t detain or capture these suspects. The administration would escalate and expand the Bush administration’s policy of killing terror suspects through drone strikes or by military special-mission units. Killing terror suspects covertly would become a primary facet of counterterrorism operations.
Klaidman describes what made Joint Special Operations Command (JSOC) of the military and the Central Intelligence Agency (CIA) the pragmatic option:
…It was relatively small, nimble and, while not covert in the legal sense, operated in a culture of near-total secrecy. Until recently, the Defense Department did not even officially acknowledge its existence. Some of its missions were so compartmentalized that they took place without the relevant combatant commander’s knowledge. Moreover, unlike the CIA, JSOC was not required by law to brief Congress on its clandestine operations. Law and politics so constrained Obama’s ability to influence counterterrorism policy. It’s easy to appreciate the lure of JSOC, which was sometimes referred to as the president’s "secret army."… [emphasis added]
Klaidman argues this development in policy was a result of Obama, the realist, who did not want to get "embroiled in other country’s insurgencies." He adds, Obama knew because he was a lawyer that targeted killings would be taking place away from the "conventional battlefield." That would raise questions about whether these operations were covered by the Authorization for Use of Military Force (AUMF) signed by President George W. Bush after the 9/11 attacks. Obama addressed this by giving lawyers an "overt role" in counterterrorism operations. Like Bush had begun to do during his second term, lawyers like Harold Koh and Jeh C. Johnson were brought on to craft, finesse or provide legal justification for targeted killing operations like Bush lawyers had done for Bush administration interrogation techniques, warrantless wiretapping and other abuses of executive power. They had conflicts about the killings they were carrying out but eventually came to accept the program as one with a "humanitarian upside."
Though Klaidman’s book seemingly ignores the effect of the president’s pragmatic decision to choose killing over confronting his predecessor’s abuses of power and though he seems to have decided to thank officials who helped him write his book by promoting Obama administration propaganda on drones, the book is still a considerable piece of work. The evolution from an administration intent on addressing the problems of detention policy and closing the Guantanamo prison to one willing to just let the issue fester and in the meantime kill all terror suspects instead is remarkable to see laid out in one book.
Obama’s gutlessness in the face of resistance to proposed changes in counterterrorism is likely serve as a deterrent for future politicians campaigning for the presidency. The refusal to fight and instead move forward showed it is not politically expedient for a president to promote or push policies that call on institutions to follow the rule of law. He ceded all control of what happens with national security policies to Republicans. And this dedication to spinelessness did not end after Guantanamo. The spinelessness is why it appears only one terror suspect, a Somali, has been captured abroad. It is also what led him to refuse to veto a National Defense Authorization Act (NDAA) that granted the military the power to indefinitely detain people. He did this because, "The GOP primaries had turned into a circular firing squad and the White House was beginning to win the populist argument on jobs and the economy. Why jeopardize that for a set of issues that had been losers since day one?"
More significantly, the commitment to avoiding resistance from human rights groups, civil liberties advocates and Republicans led him to expand executive power in a way that President George W. Bush could never have accomplished. This is exactly why supporters of unrestrained executive pwoer like former head of the CIA’s Counterterrorism Center and torture advocate Jose Rodriguez have said," "How can it be more ethical to kill people than to capture them?" It is why torture memo author Steven Bradbury has said, "If the president says we can kill an American citizen in Yemen through the Executive Branch decision you’re an enemy combatant—I support that—why in the world couldn’t we hold them for intelligence gathering [indefinitely or for a number of days without Mirandizing them]?" It is why the Wall Street Journal wrote in an editorial that the victims of drone attacks were "missing detainees" because they can’t be dragged to Guantanamo, Bagram or some CIA black site to be waterboarded. And it is why, John Yoo, also a torture memo author, wrote recently, "Candidate Obama campaigned on narrowing presidential wartime power, closing Guantanamo Bay, trying terrorists in civilian courts, ending enhanced interrogation, and moving away from a wartime approach to terrorism toward a criminal-justice approach. Mr. Obama has avoided these vexing detention issues simply by depriving terrorists of all of their rights—by killing them."
From the other side of the debate on unrestrained executive power, it is why author and Professor Emeritus of Linguistics and Philosophy at MIT, Noam Chomsky, has said, if Bush "didn’t like somebody, they’d kidnap them and send them to torture chambers; if the Obama administration decides they don’t like somebody, they murder them, so you don’t have to have torture chambers all over." It is why Moazzam Begg, former Guantanamo detainee/human rights activist, has said, "I used to say Bush is president under which extrajudicial detention is taking place and Obama is president under which extrajudicial killing is taking place. So, Obama, did promise change and this is it—a change from extrajudicial detention to extrajudicial killing." And why Marjorie Cohn, former president of the National Lawyers Guild, wrote with regards to the Supreme Court’s decision to not hear Guantanamo prisoners’ cases, Obama’s "strategy is to assassinate 'suspected militants’ or people present in 'suspicious areas’ with drones, obviating the necessity of incarcerating them and dealing with their detention in court."
Obama failed to close Guantanamo. He, however, succeeded in expanding a policy of state-sanctioned murder that has made neoconservatives and national security establishment figures jealous. It has inspired resentment against the administration for criticizing Bush but also led to praise for coming around to the fact that the Bush administration did actually "get it right" on counterterrorism. And so, any lawlessness and excesses of power Americans and others in the world wanted to see addressed are now untouchable. Policies of lawlessness and unrestrained executive power are now further entrenched than ever before and now include a conscious policy wholly supported by the president that UN investigators say has likely produced war crimes.