Barack Obama's first official act in office addressed not the economy or health care but Guantanamo. In a moment of high drama, surrounded by a phalanx of retired military brass, the president signed a series of executive orders acknowledging that "the individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus," providing that the executive branch would undertake "a prompt and thorough review" of whether the "continued detention" of the men at Guantanamo "is in the national security and foreign policy interests of the United States and in the interests of justice," and ordering that "the detention facilities at Guantanamo…shall be closed as soon as practicable, and no later than 1 year from the date of this order." Obama issued a separate executive order banning the use of "enhanced interrogation techniques," i.e., torture.
As far as Guantanamo was concerned, those executive orders would represent the high-water mark of the Obama presidency. The first year of his administration was noteworthy not for the closure of Guantanamo but for a series of unilateral actions that were starkly at odds with the president's rhetorical defense of habeas corpus and that doomed his much-heralded directive to close the island facility:
- The Obama administration caved on its plan to resettle two of the Uyghur detainees in the United States. In its first months, the Obama administration had reached an agreement with habeas counsel for the Uyghur detainees—members of a persecuted minority group in China—to resettle two of their clients in the Washington, D.C., area, where there was an existing Uyghur-American community ready to help the detainees with jobs, housing, and other support. But in mid-2009, only a few days before their scheduled arrival, word of the plan was leaked. In the face of opposition by some members of Congress, the Obama administration walked away from the agreement.
- The Obama administration argued, as previously the Bush administration had done, that the courts have no authority to order the president to release detainees here, even if there is no basis to continue to detain them and even if they present no security risk. In the waning days of the Bush administration, the district court that was hearing the Uyghur detainees' habeas cases ruled in their favor and ordered their release into the United States. The Bush administration immediately appealed, and in February 2009, just after Obama assumed office, the U.S. Court of Appeals for the D.C. Circuit ruled that the courts had no authority to order the president to release detainees into the United States. The decision gutted the detainees' habeas corpus rights, for habeas is meaningless if the court reviewing the lawfulness of someone's imprisonment has no authority to order his release. The detainees quickly sought review by the Supreme Court, but in May 2009, the Obama administration filed a brief opposing review and urging the Supreme Court to let the appeals court's ruling stand. The administration effectively persuaded the Supreme Court to dismiss the case as moot by arranging for the Uyghur petitioners to be released in Palau (a tiny island nation in the Pacific Ocean) instead.
- Obama signed legislation barring transfer of detainees from Guantanamo to the U.S. and restricting transfer of the detainees elsewhere. In June 2009, Congress passed a supplemental appropriations bill that barred the use of funds to release any of the Guantanamo detainees in the United States or, as a practical matter, even to transfer them to the U.S. for detention or prosecution. The legislation also restricted the use of funds to transfer the detainees to other countries. At the time, the Democrats overwhelmingly controlled both houses of Congress, so passage of the legislation cannot be laid at the door of obstructionist Republicans. That the legislation passed at all reflects a failure of leadership on Obama's part. The legislation would make it impossible for him to make good on the executive order to close Guantanamo. Obama could have vetoed the legislation and used the "bully pulpit" of the presidency to explain why the restrictions were unacceptable. He did neither, instead choosing to sign the bill. Over the course of his presidency, Obama would repeatedly sign such legislation.
- Obama continued the Bush administration's indefinite detention of individuals without charge. Obama's executive order had banned the use of torture going forward, but the only "evidence" against many of the detainees was tainted by torture or coercion. Because such evidence is considered inherently unreliable and would be inadmissible, it could not be used as the basis for criminal prosecution in our regular courts. But in May 2009, Obama announced that his administration would simply detain indefinitely, without charge, those at Guantanamo "who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States." The Obama administration came to describe this category of detainees as "impossible to try but too dangerous to release." Obama had campaigned on a pledge to restore the rule of law, yet if the rule of law means anything, it is that the law must be applied consistently and may not be ignored or manipulated to achieve a particular result. Adopting a policy to detain individuals without charge, precisely because there is no lawfully obtained and admissible evidence with which to charge them, is the antithesis of the rule of law.
- Obama rejected calls to prosecute, or even appoint an independent inquiry to investigate, the torture of detainees during the Bush administration. When queried about the possible appointment of a special prosecutor to investigate Bush-era torture, President-Elect Obama stated that "we need to look forward as opposed to looking backwards." And in April 2009, when Obama approved the release of the so-called "torture memos" issued during the Bush administration, he "assure[d] those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution," stating that "nothing will be gained by spending our time and energy laying blame for the past." Again, a bedrock principle of our system of justice is that no person is above the law and that the criminal laws apply equally to all. High-ranking members of the Bush administration may or may not have violated the law in authorizing the use of torture. But Obama's policy of "looking forward"—of ignoring possible crimes by high-ranking officials because it was politically expedient to do so—is anathema to the rule of law.
- The Obama administration broadly invoked the "state secrets" doctrine to forestall litigation seeking redress for torture. Candidate Obama had decried the Bush administration's practice of "extraordinary rendition"—transferring detainees for interrogation to countries whose authoritarian regimes were known to engage in torture—as the "outsourcing of torture." Candidate Obama had also promised to restore transparency to government, and criticized the Bush administration's efforts to have litigation challenging government actions dismissed on the grounds that the very subject of the litigation was a "state secret." But in Mohammed v. Jeppesen Dataplan, Inc., a 2009 case brought by foreign nationals who claimed they were victims of extraordinary rendition and torture at secret detention facilities in other countries, the Obama administration argued that the case should be dismissed under the "state secrets" doctrine. That same year, the administration invoked the doctrine to seek dismissal of litigation challenging the National Security Agency's warrantless surveillance program.
- The Obama administration argued that U.S. courts do not have jurisdiction to hear habeas corpus petitions brought by detainees held at Bagram Airfield Military Base in Afghanistan. When Obama took office, his administration had to address pending habeas corpus litigation brought on behalf of detainees held by the United States at Bagram Airfield Military Base. The district court asked whether the new administration intended to change the government's position that the court had no jurisdiction to hear the Bagram detainees' habeas cases. In February 2009, the Obama administration responded: "Having considered the matter, the government adheres to its previously articulated position." Two months later, the district court rejected that position, explaining that "these petitioners are virtually identical to the detainees in Boumediene—they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be 'enemy combatants,' a status they contest." The Obama administration appealed, arguing, as the Bush administration had done, that the detainees at Bagram had no right to challenge their detention in U.S. courts. In June 2008, candidate Obama had praised the Supreme Court's Boumediene decision as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo." Now, the Obama administration was attempting to legitimate just such a "legal black hole" at Bagram. (In 2010, the administration's argument carried the day with the D.C. Circuit.)
It is painful to confront the juxtaposition between Obama's powerful personal defense of habeas corpus on the campaign trail—saying it's necessary to make sure you have the right person, because you might think you have "Barack the bomb thrower, but it's Barack the guy running for president"—and his abandonment of those principles once he occupied the White House.
The president's apologists have argued—and no doubt will continue to argue long after he has left office—that he did the best he could in the face of unprecedented opposition from the Republicans in Congress. But whatever opposition he might have faced in other policy areas, with respect to many fundamental "rule of law" issues, the fault for Obama's failure to bring about change lies not in his stars, but in himself.
This essay is from Obama's Guantánamo: Stories from an Enduring Prison, edited by Jonathan Hafetz © 2016. Reprinted with permission from NYU Press.