With just over a year left in office, President Obama is running out of time to fulfill his long-term promise to close the U.S. military prison at Guantánamo Bay. Obama signed an executive order for Guantánamo’s closure in one of his first moves as president. But for the last six years, the administration has backed down in the face of staunch Republican opposition. Now that showdown could be revived.
The imprisonment of foreign citizens at Guantánamo is one of several Bush-era policies that continued under Obama’s presidency. While Obama has closed the CIA’s secret prisons and banned the harshest of Bush’s torture methods, many others—the drone war, presidential secrecy, jailing whistleblowers, mass surveillance—either continue or have even expanded.
Charlie Savage talking:
I’ve been covering these sorts of issues, post-9/11 legal policy issues about collective security and individual rights, since about 2003, when I first went to Guantánamo, and then expanded out from there to issues like surveillance and torture and all the rest of these things that you just mentioned. And I remember in 2009, when Obama came in and he issued executive orders like the one you just mentioned, Juan, and was going to close the prisons, and there was going to be no more torture and so forth, I was thinking, “What am I going to do with myself? You know, this is my specialty. This is what I get up in the morning and come to work and think about. This is what all my sourcing is. And I need to find something else to do. Maybe there’s an opening in the sports department or something, right?”
But it turned out that there was quite a lot to keep me busy in the years that followed. These issues were not so simple. There weren’t going to just be turned off, notwithstanding that first week of executive orders. In fact, very quickly, it became clear that there was going to be a lot more continuity with the counterterrorism policies that Obama had inherited from George W. Bush than the expectations created by his campaign rhetoric. I think by February of ’09, I was over at the White House talking to Obama’s new White House counsel about why that was. And so, for the last few years I’ve been chronicling all this and continuing to go to Guantánamo and think about executive power issues. And then, of course, with the Edward Snowden leaks, we saw how much the surveillance state that Obama had inherited had remained intact.
And it became clear to me that there was a big story here that could not be told in individual newspaper articles, which—you put all this together systematically, but also go behind the scenes and talk to people. I talked to 150 current and former government officials. I gained access to lots of documents that hadn’t been public. And I was attempting to explain what happened. How did this—how did it turn out like this? People on the left say Obama is acting like Bush. Is that true? What does it mean to act like Bush? Maybe it’s true in one respect, but not others. But also, when you look at these, over and over, these sort of—these episodes where things are happening in the world, and the sort of liberal Obama lawyers are grappling with, and policymakers, what are we going to do about it, and the rules are not clear, and it’s not as simple as it seemed to be on the campaign stump—”Oh, we’re just going to end the war on terror”—when it’s your administration that is going to be blamed and maybe go down in flames if there is a successful terrorist attack.
the book opens with a trio of chapters about the Christmas 2009 moment and the sort of political fallout from it. So your listeners or your viewers may remember that a al-Qaeda terrorist attempted to blow up a plane with a bomb in his underwear on Christmas Day in 2009, and, thankfully, the bomb failed to go off.
But it quickly became this enormous political and policy event. And the FBI read the terrorist his Miranda rights, and that—suddenly Mirandizing terrorists became a political issue. In New York, even Democrats who had sort of cautiously favored having the 9/11 trial of Khalid Sheikh Mohammed and others in a normal court in New York, suddenly there was this wave of fear, and the political support for that option collapsed. Obama was forced to—by politics, to put a moratorium on transferring Yemenis from Guantánamo, which basically killed the effort to close Gitmo, because so many of the low-level prisoners are from Yemen—because the affiliate was based in Yemen, that had sent the operation. And most importantly, Scott Brown, the Republican, wins Ted Kennedy’s seat in deep blue Massachusetts a couple weeks later. And he does that by pounding on this issue of Obama’s trying to use—you know, give rights to terrorists, and he should just be sending this guy to Guantánamo.
And I think inside the administration, all this culminated in a sense that they really can’t sustain an attack. Everything they would try to do, on totally unrelated issues—healthcare and so forth—would collapse. Obama would be a failed, one-term president. And at that point, this sort of ambiguous, ambivalent first year he had had, where he’d sort of kept this but got rid of that, was going to keep this but ratchet it back, shifts, and he takes a much harder line on counterterrorism issues than he had before as an individual. And within the administration, security-minded voices, many of whom are permanent parts of the government, not part of the political appointees who come in, and who don’t—who are reluctant to let this guy out of Guantánamo or put this tool back in the toolbox and say we’re not going to use it anymore, they have a lot more influence. And the sort of reformer-minded faction gets quiet. And I chronicle that through sort of fly-on-the-wall meetings through these disputes that—some of which we knew kind of what happened, but we didn’t know why and who was taking what position and what was going on behind closed doors. And others of the stories I’m telling in here, we didn’t know at all.
in this book, I have two chapters about surveillance. And one of them is only about what happened under Obama, both before and after Ed Snowden. And the other one tries to take everything that we now know, because of the Snowden leaks and then the government’s declassifications as a result of the Snowden leaks, of how surveillance developed from the ’70s up until 2009, and put it together into a coherent story, because there’s like this whole secret history of how technology and spying powers changed that we didn’t know. Now it’s knowable.
But I open that historical chapter with a briefing that Obama received on February 4, I think it was, 2009—right at that moment where I was thinking there was nothing left for me to do, but was also starting to realize, “Wait, what about these things they say they’re going to keep?” But we didn’t know about this at the time. So Obama comes into the Situation Room to receive a briefing on all these surveillance programs and, you know, the program that’s keeping records of all Americans’ domestic phone calls and emails, that we don’t know about until after the Snowden leaks. But he finds out about it at this briefing. And the sort of permanent security state—the FBI and the NSA and the CIA and the intelligence community—want to tell the new president, “Here’s what you’ve inherited.”
And they brief him on all this stuff, and they also explain how George W. Bush had sort of put it in unilaterally, by fiat—”I’m the commander-in-chief. The law doesn’t matter. We’re going to do this”—after 9/11. But also, over time, it had become—it had been secretly put on a stronger legal basis. The intelligence court had begun issuing orders for it. They come up with this PATRIOT Act theory about why maybe it was authorized, counterintuitively, by statute. And so, their argument was: It’s OK now, because the legal basis for it is OK. And over and over, we see the pattern in the Obama administration of “What was the problem with Bush? Is it the problem that these programs are inherently bad, or is the problem that Bush was putting them in place in a way that violated statutes?”
And the very lawyerly minded Obama administration—Obama himself being a lawyer, a lot of the policymakers around him being lawyers—were overwhelmingly focused on the problem with Bush, if there was one, being a legal problem. And so, Obama says, “Well, I’m comfortable”—when he learns about these programs—”I’m comfortable with what you’re telling me, but I want my lawyers—Eric Holder, Greg Craig—to take a look. And are they satisfied?” And they were satisfied. I talked to Greg Craig on the record about why he didn’t—you know, they were fighting the security establishment in other ways; why did Obama not stop this when he first heard about it? He was like, “Well, you know, the court had approved it, and there was a statutory basis for it. The intelligence communities know about it. It did not seem to be a legally rogue program. We just needed to make sure we obeyed what the court was telling us to do, and then it was fine, because the problem is law, not the problem is individual rights.”
the physical tracking of Americans through their cellphones was sort of edged out and on the side, but so much was coming out that, you know, which target are you going to pay attention to? This is the 2013 flurry of disclosures. That’s true. So there’s this bulk phone records program, famously, right? It does not keep track of cellphone locational data, but it just says who called whom, when. But there was—the NSA was playing around with “Could we also add another layer of metadata, which is which cellphone tower is this phone proximate to? Can we ingest that in bulk so that everyone’s location at any given moment in the day would also be in our databases? And then we could use that to figure out, if we’re interested in someone or the people that person’s been in contact with, you know, where were they physically.” And they actually got some data, and they started testing the system and then shut it down. That was before Snowden. But it sort of shows you the surveillance state or the people who play with toys at the NSA see the technological operational capabilities of something as interesting, and they play with it, and sometimes the technology gets way beyond what policymakers have decided is actually a good idea and is certainly way beyond what the rules were written to regulate.
in some ways, Obama sort of continued at least the outlines maybe of what he inherited from Bush. In some ways, like torture, he ratcheted it back. In a few ways, he goes beyond Bush. He uses drones and does targeted killings at a much more intense clip.
And another way in which things are different, in a more aggressive way under Obama, is that this administration is overseeing now the criminal prosecution of nine leakers. I mean, as a side issue, I’d quarrel with calling them all whistleblowers. I think that makes it too easy for defenders of what’s happening to say, “Well, this guy’s not a whistleblower,” and then it sort of discredits the whole critique. But I would say the people who are providing information to the public, for public education purposes, without authorization, of information that higher-ranking people of the government want kept secret. Nine prosecutions in this administration versus three in all of American history combined. A radical change, right? And when there is a—so I have a whole chapter looking at each of the nine cases and trying to figure out, behind the scenes, where did this come from, because when you see something that turns on a dime like that, a sea change, you really want it to be—to make sense. You want someone to have at least decided to do that.
And part of what I came up with was this just happened because—this goes back to Snowden. Because of technology, it’s impossible to hide who’s in contact with whom anymore, and cases are viable to investigate now that weren’t before. That’s not something Obama did or Bush did. It’s just the way it is in the 21st century, and investigative journalism is still grappling with the implications of that.
they totally mishandled Guantánamo. Obama announced on January 22nd we’re going to close Gitmo, and then he didn’t close Gitmo. They were going to take their time. They were going to look at each detainee. They were going to carefully figure out, well, what’s the—where should we send them, this place or that place. And a year passes, and the politics change in that year, because of, you know, the Republicans figure out they can attack Obama for wanting to bring terrorists to your backyard, even though it would be a maximum-security lockup. And the underwear bombing happens, as I mentioned, and there are a few other incidents. And this thing—this policy was sitting out there like a piñata, and then that—just to be hit and hit and hit. Whereas I think, in retrospect, if he had just done it on day three—put them on a plane and bring them to Fort Leavenworth or something—it would have been a fait accompli.
But he drags his feet, and then, eventually, Congress passes a statute, that he reluctantly signs into law because it’s bundled with a bunch of other stuff, that says you cannot bring Guantánamo detainees onto U.S. soil for any purpose—not for continued detention, not for prosecution. And that statute remains in place today. One of the reasons he vetoed the bill last week that you mentioned was that it didn’t lift the statute, but with or without that bill, there’s a provision like that that lasts at least, I think, through the end of the fiscal year and September 2016. And so, that, by the way, was a Democratic-controlled Congress that enacted that law. So, this is kind of—it’s not just Republicans that did this to him. But certainly Republicans now control Congress. The idea that they’re going to give him a policy win by lifting that seems to me very remote. Even if he vetoes and vetoes, it’s—you know, it would take a government shutdown eventually, because it’s attached to the budget.
So that’s going to leave—if that impasse remains, it’s going to leave him with two options, one of which is policy failure and just knowing that history will say he said with fanfare he was going to do this thing and never was able to do it, or the other would be to act in defiance of the statute, to say, “I’m the commander-in-chief, and I can move wartime prisoners. Congress can’t tie my hands in that way.” And that brings its own problems. That’s the kind of thing George W. Bush used to do that drove Democrats crazy, including Obama. And so, is he going to go out—go out of office doing something—acting in defiance of a statute? That doesn’t seem like a very attractive option for him, either. So it’s a terrible dilemma.
And I think—especially for your viewers, I think that this shouldn’t pass without noting that his plan for closing Guantánamo is not supported by some on the left, either, because his plan for closing Guantánamo is not to let go everyone who can’t be prosecuted. His plan is to bring another at least 40, maybe 60, people who can’t be tried but are deemed too dangerous to release, and keep holding them in law of war detention without trial somewhere else. So, you know, query whether that’s really closing Guantánamo. You know, is Guantánamo the physical prison with a name, or is Guantánamo this policy as a means of dealing with terrorism which has attracted so much controversy over the last 13, 14 years? And so, some human rights advocates and civil liberties advocates certainly want to see Gitmo closed, but they don’t want to see all those prisoners brought to U.S. soil and held under that authority here, because they think that would institutionalize the mechanism of detention without trial as a way of dealing with terrorism here on U.S. soil, which would actually be a pyrrhic victory from their vantage point.
because I do this day in and day out, and I’ve been doing it for 13 years, like shock is a strange way to think about it. I mean, this is my world. I’m used to it. I’m immersed in it. I talk to these people all the time.
there’s certain stories I tell in the book that are not of the—you know, there are some in which we knew what they did, and we just didn’t know why or we didn’t know the behind-the-scenes deliberations, others that we just didn’t know had happened at all. And so, when I found one of those, I was, you know, particularly interested.
One of them, for example, is about how they ended up sort of compromising their principles a little bit on using evidence derived from torture to hold someone at Guantánamo. I tell the story—none of this was known. I told the story of this guy, a Yemeni guy named Alhag, and he was captured by Pakistanis in a raid on a guesthouse in 2002 with a bunch of other people and brought to Gitmo. And really, the evidence against him was he was at this guesthouse. That’s basically it. It was very thin. But there was one guy who had apparently been tortured, or at least abused, and he had said something that applied to everyone at the guesthouse, something like “We were all going to go, you know, attack U.S. troops in Afghanistan,” or something. It was sort of this vague statement.
And when the Obama people came in and looked at everyone—they had this six-agency task force—they looked at everything, including that statement, and they decided that “We need to let this guy go. This is just too thin.” And they almost sent him in 2010 to the Netherlands. And then, at the last second, he said something to a visiting delegation from the Netherlands about how he might like to go home someday. And the security establishment freaked out, and they said, “Well, if we send him to the Netherlands, he’ll just get on a plane and go to Yemen.” And this was after the underwear bombing, and they just thought, “No one can go to Yemen, because al-Qaeda is too active there and the government doesn’t have control. And so, we can’t send him to the Netherlands after all.”
And that meant that this court case he had brought, saying, “Let me go. There’s not enough evidence I’m part of al-Qaeda,” had to be addressed instead of being mooted because he was going to be put on a plane. And the problem was other people who had been at this guesthouse had already gone through the court system, and the judges had been—had thrown it out and said, “This is garbage. What are you doing? Get rid of this person. This is not—this is no good.” But they hadn’t been using this torture-tainted piece of evidence. And so, the Justice Department litigators who had to go into court said, “We are not going to—we can’t not tell the judge about this other reason why we think he’s dangerous, OK, because it’s unethical to bring a trivial case in court, and without that, it looks like we’re doing something trivial.” The State Department says, “We can’t use this torture-tainted evidence in court. That’s against—we said we weren’t going to do that. That’s against our morals and our ethics.” And then the intelligence community says, “We can’t let him go. We’ve got to fight to hold onto him, because we can’t send him back to Yemen.” So it set up this three-way policy dilemma. Someone had to lose. And because it was all happening with sealed filings and no one knew what was going on, it was the State Department that lost. So they kept fighting in court, and they used the torture-tainted evidence, and Alhag stayed locked up for two-and-a-half more years. I think he was eventually in late 2013 resettled somewhere else.
But it’s like—I mean, that’s a sort of slightly complicated story, but it also shows—that’s a sort of a flavor of what I’m trying to bring to readers. You can see how the permanent security establishment, the concerns of litigators going into court, the high values of the sort of liberals that were part of the administration all come into conflict with these dilemmas that don’t have perfect answers, and they end up doing things that, certainly in 2008, I don’t think they would have envisioned doing.
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Charlie Savage
Pulitzer Prize-winning journalist at The New York Times. He is author of the new book, Power Wars: Inside Obama’s Post-9/11 Presidency. He is also the author of the 2007 book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy
— source democracynow.org