- The Washington Times - Monday, January 17, 2011

Two years ago this week, President Obama issued a sweeping executive order promising to shutter the Guantanamo Bay, Cuba, detention center within a year. Today, it’s still open and running with little prospect of that changing in the near future.

Mr. Obama says he is still committed to closing the prison at the U.S. naval base in Cuba, which remains — in his words — a marquee recruitment tool for terrorists. But the administration’s failure to see through one of Mr. Obama’s first pledges as president is also symbolic — a stark indicator of the limits of presidential power and the difficulty of converting his hope-and-change campaign message into concrete action.

“I think I’d be dead by now if I were holding my breath” that Mr. Obama would make good on his Guantanamo vow, said Code Pink co-founder Medea Benjamin, whose antiwar group continues to protest the White House over the Guantanamo prison as it did under President Bush.

Such sentiment is a far cry from 2008 when advocates were heartened by high-profile support from both sides of the aisle as Republican presidential candidate Sen. John McCain of Arizona and Mr. Bush himself joined Mr. Obama in calls to close the prison. But the issue took a back seat to domestic priorities as Mr. Obama threw his energy into shepherding an $814 billion economic-stimulus package through Congress and overhauling the nation’s health care system.

Guantanamo, meanwhile, became the ultimate political football as Republican lawmakers led the charge to keep the prison open by highlighting what they described as a humane, state-of-the-art facility and warning of safety risks if detainees were to be transferred to the United States. Mr. Obama had yet to mount a sustained public effort to close the prison before members of his own party — who at one point led Congress with a filibuster-proof majority — joined the GOP last spring to thwart a plan to purchase a federal prison in Illinois and transfer detainees to it.

Most recently, in one of its last acts before Republicans took control of the House, the Democrat-led Congress in December approved a defense authorization bill barring the use of Pentagon dollars for transferring detainees to the United States. It also hamstrings efforts to send them to another nation by requiring a certification from Defense Secretary Robert M. Gates that a foreign country abides by a strict security protocol.

“The American people don’t see a big problem with Guantanamo,” said Rep. Duncan D. Hunter, California Republican and a Marine reservist who served in Afghanistan and Iraq and now sits on the House Armed Services Committee. “They don’t want terrorists brought here, and they sure as heck don’t want them released here if they were found not guilty. … These aren’t people that belong to another army, and they aren’t criminals. They’re terrorists, and they need a special classification, and they need a special place.”

Earlier this month, Mr. Obama said he had no choice but to sign the authorization bill, which approved billions for the ongoing wars in Iraq and Afghanistan, but he issued a highly critical signing statement that decried the Guantanamo provisions as a “dangerous and unprecedented challenge to critical executive branch authority” and also vowing to push for a repeal of the restrictions, which expire in September.

“It is important for us, even as we’re going aggressively after the bad guys, to make sure that we’re also living up to our values and our ideals and our principles,” Mr. Obama said in December. “That’s what closing Guantanamo is about — not because I think that the people who are running Guantanamo are doing a bad job, but rather because it’s become a symbol. And I think we can do just as good of a job housing them somewhere else.”

More than 173 detainees are housed at Guantanamo, according to the Pentagon. Opened shortly after the invasion of Afghanistan nine years ago, the facility has been the subject of heated debate ever since human rights groups decried it as illegal, while security hawks pointed to evidence that a number of former detainees have returned to the battlefield — although the exact figure is in dispute.

Although Mr. Obama has yet to meet his pledge to close the prison, some supporters of closure say he deserves credit for trying.

“There’s plenty of responsibility to go around,” said Heather Hurlburt, executive director of the National Security Network. “I think the first thing you have to say is that everybody — the White House, but also people outside government — underestimated just how possible it was going to be to exploit anxiety for political purposes around this issue. You can fault the White House for that, but you can also fault those of us outside of government who thought this was a really great thing that would happen easily.”

It’s not clear, however, if Congress has completely tied Mr. Obama’s hands.

The American Civil Liberties Union argues that the president could still use appropriations from departments other than Defense, such as Justice, to pay for the transfer of detainees to the U.S. for trial in civilian courts. The group, which was highly critical of the legal underpinnings of the Bush administration’s war on terrorism, has praised Mr. Obama for his executive orders to close Guantanamo and end the use of harsh interrogation tactics, as well as his release to the public of so-called “torture memos” drafted by Bush-era lawyers.

But what worries the civil liberties group, said Hina Shamsi, director of the ACLU’s National Security Project, is that Mr. Obama has yet to “dismantle” the legal architecture created by the Bush administration by continuing to rely on indefinite detention, the use of military commissions to prosecute suspects and the “state secrets” privilege to guard the government against lawsuits. After reports surfaced last month of an executive order that would formalize indefinite detention while creating a detainee-review process, the ACLU warned that Mr. Obama risks institutionalizing one of his predecessor’s most contentious policies.

“We are in real danger of normalizing what was extreme and unlawful,” Ms. Shamsi said. “That creates a legacy that would not restore the rule of law, but serve further to repudiate it, and that’s what we must avert.”