7.6.2 Congress

The implementation of Obama’s security policies was largely thwarted by Congress. Many steps aimed at revoking the detention and interrogation policies that had been established under the Bush administration were blocked by the legislative. Even the Democrats in Congress turned down Obama’s plans. In his remarks on national security, Obama was quite blunt in stating:

Now, as our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These are issues that are fodder for 30-second commercials. You can almost picture the direct mail pieces that emerge from any vote on this issue – designed to frighten the population. I get it. (Obama 2009/05/21)

Obama saw himself urged to repeat that he was “not going to release individuals who endanger the American people” (Obama 2009/05/21). After all, as The New York Times noted, the announcement to close Guantanamo had “sparked a revolt in Congress, even among Democrats” (Baker 2010). At the same time, in May 2009, a project of resettlement demonstrated how tense the atmosphere really was with regard to detention issues. As Republicans began to realize that the Obama administration aimed to resettle some Chinese Uighurs to the United States – Guantanamo captives who had been cleared for release – their reaction was prompt and categorical.146 In Congress, the Republicans declared “their opposition to bringing any detainees to the U.S.” (Mayer 2010, emphasis in original). Shortly thereafter, it became clear that the Democrats were siding with the Republicans. Within days, the Senate voted 90 to 6 to strip the War Supplemental Bill of 80 million dollars – money that had originally been scheduled for the closure of Guantanamo (Bash/Barrett 2009; Herszenhorn 2009). At that point in time, Obama had not published a plan stating to where he wanted to transfer the captives held at Guantanamo – an omission the Republicans capitalized on. They described Obama as “reckless” and they “launched a high-profile campaign” against the ‘premature’ closure of Guantanamo – a campaign that included the question: “Meet your new neighbor, Khalid Sheikh Mohammad?” (Bash/Barrett 2009). Resistance continued to grow in Congress during the following months. One reason for this was the indication that a considerable proportion of released detainees had taken up the fight against the United States (Bergen/Tiedemann 2009; Landers 2010; Savage 2010a; Forsythe 2011: 107). This information, reported to Congress, strengthened the logic of Bush’s security narrative. The enemy seemed to be eternally evil, and Guantanamo provided the opportunity to keep the suspects off the battlefield and to prevent them from turning into ‘ticking time bombs’. In general, the political debate on detention policy proved problematic for the Obama administration. Harold H. Koh, a legal adviser in the State Department, openly pointed to the “difficult and divided political environment” in Washington where it was very difficult to get enough votes for “such thorny carryover issues” as “closing Guantanamo” (Koh 2010). Carl Levin, a Democratic senator from Michigan and chair of the Senate Armed Services Committee argued that there was “a lot of inertia” against shutting down Guantanamo (Savage 2010c). This was also reflected in opposition that was sparked by the administration’s intent to try terrorist suspects in the United States (Landers 2010; Rosenberg 2012).

Between 2009 and 2010 Congress continued to block several of the administration’s projects by using Congressional authority to control government spending. It used a bipartisan majority to reject the transfer of Guantanamo captives to the United States. In 2009, an exemption existed to this ban – detainees could be transferred to the U.S. for trial; however, even this exemption was overturned in 2010 (Landers 2010). Congress argued that it was too dangerous and too costly to try suspects in the United States. In a letter to Obama, the chair of the Senate Intelligence Committee, Dianne Feinstein, thus opposed scheduled trials in New York City (Mayer 2010). The administration was forbidden from spending any money to transfer detainees to the U.S. or on their trials in the United States. Legislation approved by the House of Representatives in December 2010, for example, read like this:

None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.147

The imposition of these strict limits undoubtedly embodied a setback for President Obama. Effectively, it made prosecution before civil courts in the United States impossible and confirmed the necessity of military commissions in Guantanamo. Moreover, it strengthened the probability of continued military detention without trial (Savage 2010d). The bill was approved a few weeks after the first trial of a Guantanamo detainee in a civilian court in the United States. For many, the outcome of this case against Ahmed Ghailani had been alarming as the defendant had been found guilty of only one charge, and acquitted of the other 284 charges made against him. Moreover, the judge denied the prosecution from calling a witness who it had learned about after Ghailani had been subjected to torture in a CIA prison. Despite the fact that the defendant faced a life sentence – not for 9/11, though, but for attacks on the U.S. embassies in Kenya and Tanzania in 1998 – critics viewed the case as confirmation that Guantanamo detainees had to be tried by military commissions rather than civilian courts (Landers 2010; The Washington Post 2010/11/19).

In line with its prohibition of civil trials, Congress also outlawed preparations for a ‘Guantanamo North’. The Obama administration had planned to purchase and renovate the Thomson Correctional Center in the state of Illinois to house Guantanamo captives there once the detention center in Cuba had been closed. Yet, Republicans in Congress asserted that Obama’s plan would weaken America’s security (Fox News 2009/12/15). As Republican Senator Mitch McConnell claimed, Obama’s administration had “failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping these terrorists off of our shores in the secure facility in Cuba” (Fox News 2009/12/15). The case at hand demonstrates that this statement was not true; rather, Obama had continually explained why the closure of Guantanamo was important for America’s national security. However, McConnell’s assertion seems to indicate that Obama’s framing never reached the point of dominating public discourse. Thus, plans for ‘Guantanamo North’ were also blocked by Congress by denying it the required funding. As stated in the House Report:

None of the funds provided to the Department of Justice in this or any prior Act shall be available for the acquisition of any facility that is to be used wholly or in part for the incarceration or detention of any individual detained at Naval Station, Guantanamo Bay, Cuba, as of June 24, 2009.148

In addition, the Armed Services Committees of the House and the Senate restricted transfers from Guantanamo to other countries – “including, in the Senate version, a bar on Yemen, Saudi Arabia, Afghanistan, Pakistan and Somalia” (Savage 2010c). At that point in time, 181 detainees were being held in Guantanamo; about 130 stemmed from these countries (Savage 2010c). Taken together, it is obvious that Congress seriously hampered the implementation of Obama’s plans, and it made closing Guantanamo nearly impossible. Observers and human rights groups commented on the conduct of Congress, stating that “much of its intransigence” was “driven by the politics of fear” (Rosenberg 2012) and that the president had “to lead the American people away from fear” (Mayer 2010). Although Republicans in Congress doubtless had a strategic interest in preventing the Obama administration from scoring primary successes, many of them probably truly adhered to Bush’s security narrative, and as has been demonstrated, so did many Democrats (Savage 2009, 2010c, 2010d; Slevin/Finn 2009; Landers 2010; Towell 2010; Forsythe 2011: 191; Rosenberg 2012).

7.6.3 The Apparatus: Government, Military, Secret Services

As mentioned earlier, Obama and his administration were widely criticized in 2009 due to the intended review and reassessment of America’s conduct in the fight against terrorism. Part of the media coverage mapped disputes that occurred within Obama’s apparatus. Journalists focused on the “intriguing disagreements within the upper echelons of his national security team about the proper course to pursue” (King 2014: 113). Whereas the Bush administration had presented itself as unified to the outside, Obama’s administration manifested dissension. Besides other issues, it was obvious that views on detention and interrogation policy differed considerably. Fierce debates occurred on how far the policies of the Bush administration could and should be revoked. In fact, dispute was sparked right at the beginning of Obama’s presidency when Obama prohibited the use of ‘enhanced interrogation techniques’ that went beyond those methods permitted in the Army Field Manuel. In this respect, a main role was played by White House Counsel Gregory Craig. The speculation about his personal and professional fate also says something about the friction within Obama’s administration at the time. Craig, who had been Obama’s national security advisor during the presidential campaign, was a member of the government who sought a profound reversal of Bush’s detention and interrogation policies. The controversy over these issues grew steadily, in particular with White House Chief of Staff Rahm Emanuel. Leaks began to break in summer 2009 about Craig leaving office, although he denied this at the time. However, in fall 2009, Craig resigned, and his reasons for doing so remained opaque (Ambinder 2009; Baker 2009b; Kamen 2009; Perez 2009). This led many observers to believe that Craig had fallen victim to intrigue. Speculations circulated that he had been ousted for following a too idealistic approach to national security. Since Emanuel had been accused of orchestrating “a public whispering campaign”, Craig’s resignation amounted to an “internal drama” at the White House (Ambinder 2009). In this context, it is possible that former Bush officials placed pressure on Obama’s staff to continue certain interrogation techniques. As Newsweek observed:

Senior U.S. intelligence officials, including CIA Director Michael Hayden and outgoing Director of National Intelligence Mike McConnell, told Obama’s advisers […] that they still needed the flexibility to use some interrogation methods not permitted by the military. (Isikoff 2009)

Obama’s review team, chaired by Craig, repudiated this notion. Craig’s departure was then widely noted and particularly lamented by certain interest groups. Anthony Romero, Executive Director of the American Civil Liberties Union (ACLU), commented on Craig’s resignation with the words, “He was the one voice for a constant application of the rule of law in the White House” (Baker 2010).

Craig had also been the driving force that convinced President Obama to release the legal memos demonstrating that the Bush administration had sanctioned torture. This issue had also provoked stiff debate among Obama’s officials. Obviously, one reason for this was that the intention to release the memos had been poorly communicated within the apparatus. Thus, when this intention did become known, it “prompted weeks of debate inside the administration” (Perez 2009). At the same time, the memos also exposed details of the CIA’s aggressive approach to interrogation. The debate on the memos included the questions of whether releasing the documents was responsible, and whether it was actually necessary in order to recapture the moral high ground. Obama’s officials were concerned that the memos contained details that could inflame the hate of radicals and as such have a counterproductive effect. Publishing them could thus generate further political damage, and former Vice President Cheney demonstrated his readiness to exploit this topic. However, as Attorney General Eric Holder sided with Craig, the memos were published, albeit at a price (Perez 2009). Doing so led to another deep discord, this time between Holder and White House Chief of Staff Emanuel. In general, publication of the memos heated tensions within Obama’s national security team particularly because CIA Director Leon E. Panetta and the Assistant to the President for Homeland Security and Counterterrorism John Brennan had also objected to publishing the memos. At the very least, Panetta had called for the memos to be strongly edited in advance of their publication so as to curtail public scrutiny, but he was overruled (Baker et al. 2009; Cheney 2009a). However, what was aimed at providing an opportunity to come to terms with the past probably weakened Obama’s security discourse. As The Washington Post commented:

By releasing the Justice Department memos on coercive interrogations, the Obama administration has produced an unintended effect: Revealing the context and care of these decisions has made them more understandable, not less. (Gerson 2009, emphasis in original)

In addition, a further backlash against Obama’s cause occurred when it became public that his National Intelligence Director, Dennis C. Blair, had acknowledged the effectiveness of ‘enhanced interrogation techniques’ – the very techniques which Obama had classified as torture and were therefore banned. Strikingly, Blair’s memo stemmed from the same day in April 2009 on which the White House published the OLC memos. Blair stated that “high value information came from interrogations in which those methods were used” and that this “provided a deeper understanding” of al Qaeda (Baker 2009a). Although this statement had originally been part of a private memo, it was passed on to the press by a critic of Obama’s policy (Baker 2009a). This incidence buttressed Bush’s security narrative, and it nurtured the impression that Obama’s will to end Bush’s detention and interrogation policies was not shared by all of his administration.

The decision by Attorney General Holder in summer 2009 to appoint a prosecutor to review the files on interrogation and to set up an investigation into detainee abuse posed another shock for the CIA. Director Panetta, who feared long-term damage might occur to his agency, tried to prevent the investigations but Holder was adamant and refused to back off. This instance also strained relations between Holder and President Obama as the latter had publicly declared that he would refrain from conducting investigations and ‘look forward instead of backward’. Holder’s stance became even more trying when he announced, as mentioned above, that Guantanamo detainees would be put on trial before U.S. civil courts, and in particular that this would be done with Khalid Sheikh Mohammed. However, faced with mounting political and public tension, Holder received far less support from the White House (Baker et al. 2009; Klaidman 2009; Mayer 2010). Although these frictions within Obama’s national security team do not represent a complete list, they show that the planned reversal of Bush’s detention and interrogation policies faced internal resistance. This demonstrates that within the apparatus, i.e., between departments and agencies as well as between single members of the administration, there was dissension about the right course to take. This discord centered on the reasonable limits of America’s moral and legal obligations – with regard to the future as well as to coming to terms with the past. It seems that some members of Obama’s team believed that it was impossible to combine values and an approach to security in the way the president had suggested.

With regard to Guantanamo, Obama kept emphasizing that it had to be closed since it was “probably the No. 1 recruitment tool” for terrorists (Savage 2010d). In its attempts to corroborate this statement, the White House referred to the military and cited their commanders who had “made clear that closing the detention facility at Guantánamo is a national security imperative” (Savage 2010c). This opinion had even been voiced by U.S. interrogators in former years. According to Human Rights First, an interrogator with Special Operations in Iraq stated that he had learned that “the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantánamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda” (Forsythe 2011: 213f). This seemed to confirm Obama’s security narrative. Therefore, even when the administration missed its deadline to close Guantanamo in January 2010, Obama repeated his commitment to close the detention center. As a senior official divulged, failing on this issue would be the worst possible outcome for security “because it would revive Guantánamo as America’s image in the Muslim world” (Savage 2010c). Consequently, it was viewed as better to stick to the announcement that the detention center would be closed, even if this could not actually be done.