President Trump’s Unsound Action Regarding the U.S. Prison at Guantanamo Bay, Cuba    

On January 30, just before leaving the White House for his State of the Union Address at the Capitol, President Donald Trump signed an executive order regarding the U.S. prison at Guantánamo Bay, Cuba.

The Guantanamo Bay Executive Order[1]

The Executive Order entitled “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists” started with these Findings:

  • “Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict” and that since 9/11 the U.S. “remains engaged in an armed conflict with al-Qa’ida, the Taliban, and associated forces, including the Islamic State of Iraq and Syria.” (Section 1(a), (b).)
  • “The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.” (Section 1(c ).) “Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.” (Section 1(d).)

The Order than addressed the Status of Detention Facilities at U.S. Naval Station Guantánamo Bay. After revoking President Obama’s January 22, 2009, executive order ordering the closure of those facilities (Section 2(a)),  it stated, “Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” (Section 2 (b), (c))

The Order also directed certain government officials to “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.” (Section 2 (d).)

There, however, were modest concessions to the plight of the detainees and other interests. It states, the detainees “shall [be] subject to the [previously established] procedures for periodic review . . . to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States” (Section 2(e)); the order shall not “prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate, including to effectuate an order affecting the disposition of that individual issued by a court or competent tribunal of the United States having lawful jurisdiction” (Section 3(a); the order shall not “affect existing law or authorities relating to the detention of United States citizens, lawful permanent residents of the United States, or any persons who are captured or arrested in the United States” (Section 3(b); and the order shall not “prevent the Attorney General from, as appropriate, investigating, detaining, and prosecuting a terrorist subject to the criminal laws and jurisdiction of the United States” (Section 3 (c ).

The State of the Union Address[2]

The President announced that he had “just signed an order directing Secretary Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantánamo Bay. I am also asking the Congress to ensure that, in the fight against ISIS and al-Qa’ida, we continue to have all necessary power to detain terrorists — wherever we chase them down.”

He also said, “My Administration has also imposed tough sanctions on the communist and socialist dictatorships in Cuba and Venezuela.”

Reactions

Roger Cohen, a New York Times columnist, said the prison at Guantanamo Bay “is widely viewed around the world as a facility incompatible with the American principles of fair trial, human rights and the rule of law.” Moreover, this decision “will be seen by many as a signal of an American return to the excesses of the war on terror — the use of torture, extraordinary renditions and C.I.A ‘black sites.’”[3]

Admiral Dennis Blair, the former Director of National Intelligence, said Cohen, once testified to Congress that the “detention center at Guantánamo has become a damaging symbol to the world and that it must be closed. It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security.”

The Center for Constitutional Rights (CCR) stated, “Trump’s planned executive order is not the last word on the fate of Guantánamo, any more than his attempted Muslim bans and arbitrary transgender military ban—struck down by the courts—were the last word on those matters. CCR has filed a new legal challenge to the illegality and racism driving Trump’s Guantánamo policy and demanding detainees’ release. It is the courts, not the authoritarian-in-chief, that will ultimately determine the fate of the men detained at Guantánamo.”[4]

The just mentioned CCR action on behalf of 11 Guantánamo detainees was filed on January 11, 2018, in the U.S. District Court for the District of Columbia. It alleges that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.”  This move was supported by Muslim, Faith-Based and Civil Rights Community Organizations.[5] On January 18, the court ordered the federal government to provide information about its Guantánamo policy.[6]

The New York Times in an editorial supported this challenge to the continued detention of individuals at the U.S. prison in Cuba. The editorial stated, “the men make a straightforward case for their release. The Supreme Court has ruled that prisoners at Guantánamo must have a “meaningful opportunity” to challenge the legal and factual grounds for their detention, which means that the federal courts have the power to review those claims and grant any appropriate relief. If the Constitution stands for anything, the plaintiffs argue . . ., it must stand for the proposition that the government cannot detain someone for 16 years without charge.”[7]

Conclusion

The U.S. prison at Guantánamo Bay has long been a major source of legitimate complaints against the U.S. and should be closed as soon as possible, not potentially expanded as this Executive Order would permit. In addition, this prison provides Cuba with its strongest argument that the U.S. has breached its 1905 lease of the site of the prison from Cuba.[8]

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[1] White House, Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists (Jan. 30, 2018).

[2]   White House, President Donald J. Trump’s State of the Union Address (Jan. 30, 2018).

[3] Cohen, Trump’s Volk and Vaterland, N.Y. Times (Jan. 31, 2018).

 

[4] Center for Const’l Rts, Guantánamo Attorneys blast Trump “Keep Gitmo Open” Order (Jan. 30, 2018).

[5]  Brief of Amici Curiae Muslim, Faith-Based, and Civil Rights Community Organizations in Support of Petitioners’’ Motion for Order Granting Writ of Habeas Corpus, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C. Jan. 22,  2018).

[6] Center Const’l Rts, Court Orders Government to Clarify Guantánamo Policy, Attorneys React (Jan. 18, 2018); Order, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C.J an. 18, 2018).

[7] Editorial, Donald Trump vs. Guantánamo’s Forever Prisoners, N.Y. Times (Jan. 16, 2018).

[8]  See these posts to dwkcommentaries.com: Resolution of Issues Regarding Cuba Lease of Guantánamo Bay (April 4, 2015); Resolution of U.S. and Cuba’s Damage Claims  (April 6, 2016); Does Cuba Have the Right To Terminate the U.S. Lease of Guantánamo Bay? (April 26, 2015)

 

Praise for President Obama’s Recent Civics Lessons 

Frank Bruni, a New York Times columnist, has high praise for President Obama’s commencement address at Howard University that was covered in a prior post. Bruni sees the speech as “a pointed, powerful civics lesson” for all of us to consider because Obama was “issuing challenges to groups—African-Americans, college students—from whom he has drawn strong support and with whom he has real credibility “ and because he speaks with “accuracy and eloquence . . . [in] diagnosing current ills.”[1]

Bruni also has high marks for similar words this year from Obama in his final State of the Union Address,[2] his speech to the Illinois General Assembly[3] and his remarks at a town hall session in London.[4] Another Obama speech that touched on these subjects came just last Sunday at Rutgers University.[5]

Emphasizing that Obama in the Howard University commencement address was giving a “pointed, powerful civics lesson . . . to all of us—to America,” Bruni says Obama was chiding some young people “for demonizing enemies and silencing opponents. He cautioned them against a sense of grievance too exaggerated and an outrage bereft of perspective.” In Obama’s words, “If you had to choose a time to be, in the words of Lorraine Hansberry, ‘young, gifted and black’ in America, you would choose right now. To deny how far we’ve come would do a disservice to the cause of justice.’”

“Enough,” Obama was saying, “with a kind of identity politics that can shove aside common purpose. Enough with a partisanship so caustic that it bleeds into hatred Enough with such deafening sound and blinding fury in our public debate.”

Here Bruni referenced Obama’s “wise and glorious” February 2016 speech to the Illinois General Assembly. There Obama said, “We’ve got to build a better politics — one that’s less of a spectacle and more of a battle of ideas.” Otherwise, he warned, “Extreme voices fill the void.”

In the Illinois speech Obama also diagnosed current ills with “accuracy and eloquence,” when he noted that “while ugly partisanship has always existed, it’s fed in our digital era by voters’ ability to curate information from only those news sources and social-media feeds that echo and amplify their prejudices. We can choose our own facts,” he lamented. “We don’t have a common basis for what’s true and what’s not.” Advocacy groups often make matters worse, he added, by “keeping their members agitated as much as possible, assured of the righteousness of their cause.”

“We must expand our moral imaginations,” Obama told the predominantly African-American audience at Howard, imploring them to recognize “the middle-aged white guy who you may think has all the advantages, but over the last several decades has seen his world upended by economic and cultural and technological change, and feels powerless to stop it. You got to get in his head, too.” This thought was also mentioned by Obama in late April at a town-hall-style meeting in London, when he said that once “elected officials or people who are in a position to start bringing about change are ready to sit down with you, then you can’t just keep on yelling at them.”

At Howard, Obama insisted that change “requires listening to those with whom you disagree, and being prepared to compromise. If you think that the only way forward is to be as uncompromising as possible, you will feel good about yourself, you will enjoy a certain moral purity, but you’re not going to get what you want,” he continued. “So don’t try to shut folks out. Don’t try to shut them down, no matter how much you might disagree with them.”

These recent speeches, Bruni concludes, bring Obama “full circle, from the audacity to the tenacity of hope.”

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[1] Bruni, Obama’s Gorgeous Goodbye, N.Y. Times (May 11, 2016).

[2] A Civics Lesson in President Obama’s Final State of the Union Address, dwkcommentaries.com (May 12, 2016).

[3] Another Civics Lesson from President Obama at the Illinois General Assembly, dwkcommentaries.com (May 13, 2016).

[4] President Obama’s Civics Lesson at Town Hall Meeting in London, dwkcommentaries.com (May 14, 2016).

[5] Political and Civics Lessons from President Obama at Rutgers University, dwkcommentaries.com (May 16, 2016).

Political and Civics Lessons from President Obama at Rutgers University

On May 15, President Obama delivered the commencement address at Rutgers University in New Brunswick, New Jersey.[1] Below are photographs of the President and the graduates at Rutgers.

Obama @ Rutgers

Rutegers stduents

 

 

 

 

The press naturally focused on the following remarks that indirectly criticized Donald Trump, the presumptive Republican presidential nominee:

  • “When you hear someone longing for the “good old days,” . . . It ain’t so. The ‘good old days’ weren’t that great.”
  • “The world is more interconnected than ever before, and it’s becoming more connected every day.  Building walls won’t change that. . . . [To] help ourselves we’ve got to help others, not pull up the drawbridge and try to keep the world out. . . . Building walls . . . won’t boost our economy, and it won’t enhance our security either.”
  • “Isolating or disparaging Muslims, suggesting that they should be treated differently when it comes to entering this country . . . is not just a betrayal of our values . . . it would alienate the very communities at home and abroad who are our most important partners in the fight against violent extremism.   Suggesting that we can build an endless wall along our borders, and blame our challenges on immigrants — that doesn’t just run counter to our history as the world’s melting pot; it contradicts the evidence that our growth and our innovation and our dynamism has always been spurred by our ability to attract strivers from every corner of the globe.  That’s how we became America.”
  • “Facts, evidence, reason, logic, an understanding of science — these are good things. These are qualities you want in people making policy. Facts, evidence, reason, logic, an understanding of science — these are good things. These are qualities you want in people making policy. . . . In politics and in life, ignorance is not a virtue. It’s not cool to not know what you’re talking about. That’s not keeping it real, or telling it like it is. That’s not challenging political correctness.  That’s just not knowing what you’re talking about.”

Obama also continued with his civics lessons that were discussed in his final State of the Union Address and remarks at the Illinois General Assembly, a London town hall meeting and Howard University’s commencement ceremony that were discussed in earlier posts. Here are the similar remarks at Rutgers.

“America’s progress has never been smooth or steady.  Progress doesn’t travel in a straight line.  It zigs and zags in fits and starts.  Progress in America has been hard and contentious, and sometimes bloody.  It remains uneven and at times, for every two steps forward, it feels like we take one step back.”

“But progress is bumpy.  It always has been.  But because of dreamers and innovators and strivers and activists, progress has been this nation’s hallmark.  I’m fond of quoting Dr. Martin Luther King, Jr., who said, ‘The arc of the moral universe is long, but it bends towards justice.’ It bends towards justice.  I believe that.  But I also believe that the arc of our nation, the arc of the world does not bend towards justice, or freedom, or equality, or prosperity on its own.  It depends on us, on the choices we make, particularly at certain inflection points in history; particularly when big changes are happening and everything seems up for grabs.”

“You are graduating at such an inflection point.  Since the start of this new millennium, you’ve already witnessed horrific terrorist attacks, and war, and a Great Recession.  You’ve seen economic and technological and cultural shifts that are profoundly altering how we work and how we communicate, how we live, how we form families.  The pace of change is not subsiding; it is accelerating.  And these changes offer not only great opportunity, but also great peril.”

Therefore, the new graduates need to participate in the political process. You need to vote. “And if participation means voting, and it means compromise, and organizing and advocacy, it also means listening to those who don’t agree with you.”

“If you disagree with somebody, bring them in and ask them tough questions.  Hold their feet to the fire.  Make them defend their positions.   If somebody has got a bad or offensive idea, prove it wrong.  Engage it.  Debate it.  Stand up for what you believe in. Don’t be scared to take somebody on.  Don’t feel like you got to shut your ears off because you’re too fragile and somebody might offend your sensibilities.  Go at them if they’re not making any sense. Use your logic and reason and words.  And by doing so, you’ll strengthen your own position, and you’ll hone your arguments.  And maybe you’ll learn something and realize you don’t know everything.  And you may have a new understanding not only about what your opponents believe but maybe what you believe.  Either way, you win.  And more importantly, our democracy wins.”

“Gear yourself for the long haul.  Whatever path you choose, you’re going to have some setbacks.  You will deal occasionally with foolish people.  You will be frustrated.  You’ll have a boss that’s not great.  You won’t always get everything you want — at least not as fast as you want it.  So you have to stick with it.  You have to be persistent.  And success, however small, however incomplete, success is still success. . . . Better is good.  It may not be perfect, it may not be great, but it’s good.  That’s how progress happens — in societies and in our own lives.”

“So don’t lose hope if sometimes you hit a roadblock.  Don’t lose hope in the face of naysayers.  And certainly don’t let resistance make you cynical.  Cynicism is so easy, and cynics don’t accomplish much.  As a friend of mine who happens to be from New Jersey, a guy named Bruce Springsteen, once sang, “they spend their lives waiting for a moment that just don’t come.”  Don’t let that be you.  Don’t waste your time waiting.”

“Throughout our history, a new generation of Americans has reached up and bent the arc of history in the direction of more freedom, and more opportunity, and more justice.”

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[1] White House, Remarks by the President at Commencement Address at Rutgers, the State University of New Jersey (May 15, 2016); Rutgers University, Commencement Address: President Barack Obama (May 15, 2016) (video); Harris, Obama Swipes at Trump, but Doesn’t Name Him, in Speech at Rutgers, N.Y. Times (May 15, 2016).