On Thursday, May 23, President Obama is scheduled to give a speech at Washington DC’s National Defense University in which he will talk about the legality of the death-by-drone program and efforts to close Guantanamo. Before he opens his mouth, he must hear from us.
With the President due to speak on the 106th day of the Guantanamo hunger strike, it is a critically important time to call the White House: 202-456-1111 or 202-456-1414. Tell him YES YOU CAN close Guantanamo. You may also want to submit a comment online.
On Thursday, the President is likely again to deplore the fact that his efforts to close the prison have been thwarted by Congress. However, as many commentators have pointed out, his hands are not tied. If he chose to exercise his powers, President Obama could, for example, immediately lift the ban that he himself imposed on the transfer of the 56 or so Yemenis who were cleared for release by his own inter-agency task force four years ago.
And as Guantanamo attorney Tom Wilner writes, in Section 1028 of the 2012 National Defense Authorization Act (NDAA) Congress made it easier to transfer prisoners from Guantanamo by enabling the Secretary of Defense to waive the 2011 NDAA requirement that he certify that any detainee released from the prison will not take part in terrorist acts. Such a waiver can be exercised if the Secretary finds that:
[if] it is not possible to certify that the risks … have been completely eliminated, [that] the actions to be taken … will substantially mitigate such risks with regard to the individual to be transferred; [and, in the case of the recidivism provision,] the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken … will substantially mitigate the risk of recidivism with regard to the individual to be transferred and [that] … the transfer is in the national security interests of the United States.
As Wilner states, “Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.”
There are other routes a determined President could use to move prisoners out of Guantanamo, where we taxpayers pay $900,000 annually to keep each inmate confined. A novel approach was put forward by University of Chicago Law Professor Eric Posner, who contends that Obama could declare an end to the hostilities with al-Qaida now that its core leadership has been deciminated, and simply release the prisoners. He writes:
“President Obama may worry that if he declares an end of hostilities with al-Qaida, he would need to terminate his beloved drone program, which operates in part under authority of the AUMF. But ample legal precedent shows presidents can use military force under their constitutional powers; and, in any event, nothing would stop President Obama from continuing the AUMF with respect to associates of al-Qaida. And if al-Qaida rises from the dead, Congress will eagerly supply him with a new law to fight it.”
The 2001 AUMF authorized the Commander-in-Chief to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Congress is now considering enacting a new version of the AUMF since many of the groups that are now seen as ‘war on terror’ targets were not even in existence when the 9/11 attacks took place. The issue was debated at a May 16 hearing before the Senate Armed Services Committee during which the ‘war on terror’ was declared to be, as Glenn Greenwald put it, “permanent.”
After their testimony, Sen. Angus King (I-Maine) told a panel of military men that “this is the most astounding and most astoundingly disturbing hearing that I've been to since I've been here. You guys have essentially rewritten the Constitution today."
He was referring (among other things) to comments made by Michael Sheehan, the Assistant Secretary of Defense for Special Operations, who was once the Deputy Commissioner for Counter Terrorism in the New York Police Department and had been the Coordinator for Counterterrorism in the State Department.
Sheehan thought the AUMF could serve the country for a few decades more. He told the Armed Forces Committee that the war against al-Qaida and its ‘associated forces’ (the phrase is nowhere mentioned in the AUMF) could go on for another 15 to 20 years, and that the AUMF permitted the US to strike any country that seemed “unwilling or unable” to prevent any terrorists who might be somehow linked to al-Qaida from operating in its territory.
At one point, Sen. Lindsey Graham asked Sheehan: “Would you agree with me, the battlefield is anywhere the enemy chooses to make it?"
"Yes sir, from Boston to FATA [Pakistan's federally administered tribal areas]," was Sheehan’s reply.
The exchange brings to mind a panel discussion published in Harper’s seven years ago about the possibility of a military coup in the United States.
One of the panelists was Boston University Professor Andrew Bacevich, who had been a colonel in the US Army. His words are worth pondering today:
The question that arises is whether, in fact, we're not already experiencing what is in essence a creeping coup d'etat. But it's not people in uniform who are seizing power. It's militarized civilians, who conceive of the world as such a dangerous place that military power has to predominate, that constitutional constraints on the military need to be loosened. The ideology of national security has become ever more woven into our politics. It has been especially apparent since 9/11, but more broadly it's been going on since the beginning of the Cold War.
Judging from the recent Armed Services Committee hearing, there is no end in sight.