A prison of the President’s making

Let’s be honest: President Obama’s latest plan to close Guantanamo is going nowhere. You could hear the President’s resignation as he sighed out his speech: “The detention facility at Guantanamo Bay does not advance our national security. It undermines it.”

This is both true and infuriating to hear all these years after Obama vowed in the heady days of the 2008 campaign, and repeated early and often in his presidency, to close Gitmo.

Now, Obama has cannily set the stage to blame Congress for his failure, and for the injustice inflicted upon my clients, who suffer daily at Gitmo. But it’s easy to imagine an alternative history where, after signing his executive order on Jan. 22, 2009, the President seized his chance to close the prison. Instead, he faltered, and he failed.

The first turning point came early. In May 2009, the White House planned to resettle cleared Uighur detainees with American families in Virginia. Back then, this was feasible — Obama had the political wind at his back, and no legal barriers in his way. The Bush White House had said for years the Uighurs were no threat. Families were waiting. Spare rooms were made up.

But when Republicans in Congress got wind of the plan and cried “terror,” Obama blinked. He sent the Uighurs to Bermuda, where they were photographed swimming in the ocean for the first time, eating ice cream and mowing the lawn at a golf course.

Had they been taken into America, those photographs would have done more to close Gitmo than a thousand speeches.

Once the President caved on the Uighurs, congressional Republicans knew he could be bullied. He never quite recovered. But he also missed other opportunities.

Congress introduced unconstitutional restrictions on the President’s ability to transfer prisoners out of a military base. They added these as riders to the defense budget — a supposedly must-pass bill.

Obama feebly rattled his saber about the veto, achieving little and emboldening his opposition. He should have done it, then forcefully put the case to the American people that retaining Gitmo was harming both our reputation and our security.

There were more missteps. When Obama took office, Gitmo detainees used to go home via habeas corpus review in the U.S. courts. Federal judges routinely ordered their release because the “evidence” used to hold them was so feeble. But instead of taking this cue and changing tack, the Justice Department ran the same time-wasting, hyperaggressive litigation strategy that it did under George W. Bush.

Attorneys still appealed anything and everything to the federal D.C. Circuit, always trying to lower the standard of proof. The conservative judges there were only too happy to oblige, and prisoners’ positions slowly eroded, until the burden of proof effectively reversed, leaving the prisoners guilty until proven innocent.

The statistics speak for themselves: After a run of habeas wins for prisoners in 2008, habeas petitions dropped steeply off in late 2010-11 to almost nothing.

If the President had given Attorney General Eric Holder his way, the administration would have held many more terrorism trials in federal court — and we would have seen multiple convictions by now. Instead, Obama put his faith in military commissions, which amounted to expensive show trials and were widely discredited.

That is a shame. Obama didn’t torture the defendants at Guantanamo. But he compounded that error by shunting the trials in the worst terrorist attack on American soil to an improvised, dysfunctional and unfair process.

Then there are those whom the President slated for indefinite detention — so-called “forever prisoners.” This designation was unnecessary, and fed the myth that Guantanamo was full of dangerous men. The De- fense Department is now clearing the vast majority of them, finally showing how overstated their “dangerousness” really was.

By early 2013, Obama had shuttered the State Department office that was supposed to be resettling cleared detainees. The President had thrown in the towel on his Gitmo promise, and everyone knew it — including the prisoners.

The mass hunger strike that followed should have been a wakeup call. The President could have seized the moment to speed releases from a trickle to a steady stream. He could have stopped the abuse of peaceful protesters. He could have watched the force-feeding video footage that the nonprofit I work for, Reprieve, won in court. Instead, the President fought tooth and nail to stop the films from coming out.

The reality of Guantanamo would appall Americans. Releasing the tapes would have shown the public why the prison ought to have been closed years ago.

The prisoners I represent at Guantanamo followed Obama’s 2008 campaign. They read his books. They even, the story goes, chanted his name when he won. But when the President criticizes Congress for blocking his final Gitmo plan, he has one man to blame: himself.

It began with the Uighurs