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A Willing Bystander to the Guantanamo Debacle

02/05/2013 12:45 BST | Updated 01/07/2013 10:12 BST

Two separate lightning quick reactions to President Obama's news conference on Tuesday characterized him as a "bystander" to his own presidency. Both criticized the President for talking about his stalled legislative agenda in passive terms, as if they were things that just "happened," rather than failures his own inaction had helped to bring about. To my mind, the indictment is particularly apt in Obama's odd characterization of the debacle that is Guantanamo Bay.

The President rightly noted that the prison camp is "expensive...inefficient...and hurts [the U.S.] in terms of our international standing." He stated categorically that "it needs to be closed." And he then placed the blame for its continued existence squarely on Congress's broad (and eminently fallible) shoulders, "despite the fact that there are a number of folks who are currently in Guantanamo who the courts have said could be returned to their country of origin or potentially a third country."

Let's make this a more "active" exchange: Mr. President, during your tenure, "the courts" have historically had very little to do with Guantanamo Bay. It was, in fact, a Task Force that you set-up through Executive Order 13492 which determined the "status" of all individuals currently detained at Guantanamo Bay. It was your Task Force that condemned nearly 50 men to indefinite detention because they were "too dangerous to transfer but not feasible for prosecution." It was your Task Force that relegated 30 Yemeni men to a terrible limbo state of "conditional detention" because the security situation in that country is not currently favourable for their return. The remaining men have been categorized by your Task Force as either "approved for transfer" or "referred for prosecution," which is the only place "the courts" make an appearance.

Mr. President, you also stated that you had asked your team "to review everything that's currently being done in Guantanamo, everything that we can do administratively, and I'm going to re-engage with Congress to try to make the case that this is not something that's in the best interests of the American people." Engagement is always a worthwhile pursuit, Mr. President, and you're correct that Congress' love affair with the National Defense Authorization Act is terribly misguided. But perhaps it's time for some self-reflection. For instance, it may have been easier to transfer people from Guantanamo if the Office for the Special Envoy for the Closure of Guantanamo Bay had remained open. The international community became confused about your commitment to closing the prison when Ambassador Fried unceremoniously switched jobs.

In a similar vein, Guatnanamo defense counsel have been getting some mixed messages since you took office. For example, what did your Administration hope to gain through the proposed new rules of engagement that would have let the military authorities at Guantanamo decide when and how lawyers could communicate with their clients? Fortunately, the Justice Department ultimately dropped its appeal of that issue, because the military's recent antics at the base (force-feeding hunger strikers, Smoke-Alarm-Gate et al) do not inspire any confidence in their decision-making skills.

So, even though lawyers can still--technically--meet with their clients, practically speaking, it's harder to do so than ever. It was a bold move by the Navy to try and block the only commercial flight to the base, and establish in its place a $17,000 one-day charter flight that could be approved on a case-by-case basis by the base commander. Since nearly all Guantanamo lawyers work pro bono, that would have increased out-of-pocket costs considerably. Thankfully, in the end, this creatively conceived roadblock to client access quietly faded away. Given that IBC's new reduced schedule only flies on Mondays and Fridays, it's still less than ideal for lawyers who might not be able to commit to an entire week away. But it's better than nothing - which is the status quo that Guantanamo defense counsel have become accustomed to ever since you took office, Mr. President.

Mr. President, it is true that the NDAA and rampant fear-mongering make it difficult to close Guantanamo Bay. But it's not impossible - and the power doesn't rest solely with Congress. You have the ability to make an immediate difference:

Lift the restrictions on the transfer of Yemenis. Their government wants them back, and they want to go home.

Appoint someone to replace Dan Fried. Make her high-profile, and make her answerable directly to you.

Empower Chuck Hagel and John Kerry to make use of the National Security Waiver in Section 1028(d) of the NDAA, and empower your diplomatic corps to charm our allies into accepting the "cleared 55" for re-settlement.

These actions could halve Guantanamo's population, and set an authoritative tone for the remainder of your second term.

Doing nothing is often the worst choice. No one will accuse you of being a bystander if your legacy is closing Guantanamo.