Politics of fear preserve Bush-era relic Guantanamo

>> ed mentioned,last night we did air this new msnbc documentary on why the iraq war happened. it has sparked a lot of discussion, particularly the new reporting in the film. we've had a lot of feedback on it. i'm really glad we did it. we're now talking about hopefully reairing it some more times on msnbc. but a lot of people have been asking specifically about the timing. why do this now. well, we specifically did not time the new documentary to coincide with the anniversary of the invasion of iraq . the invasion of iraq of course in march 19th , 2003 . the invasion of iraq and the war in iraq are obviously a big deal and a specific thing that is worth examining in its own right. but what we did with "hubris" was not tell the story of the iraq war , but rather the story of what made us start that war. so we didn't peg to it the ten-year anniversary of the invasion, we pegged it earlier than that. we pegged it to the lying to us by our own government that made that invasion possible. and that irreducible truth, that we were told by our government that we had to go to war because of things they said were true about the world that were not true about the world, that irreducible truth is the most important thing about the presidency that preceded this one. and unless the revisionist historians get their way, that truth will be in the first line of the obituary of each of those senior members of the bush administration when they eventually depart from this earth. and that sets up a really interesting thing for us now in 2013 in terms of how that relatively recent political history from ten years ago and our understanding of that recent political history affects our current debates now over policy now. because still among us, still out there available for comments, of course, are the senior officials of the previous administration who purposed that deception ten years ago. that's why the kicker of "hubris," the kicker of the film, essentially, the last line lands with such a thud. because even after leaving office, president george w. bush was still saying about the war in iraq you know what? i don't think i did anything wrong.

>> was there ever any consideration of apologizing to the american people ?

>> i mean, apologizing would basically say the decision was a wrong decision. and i don't believe it was a wrong decision.

>> that interview with matt lauer took place in november 2010 . after he was out of office. i do not know if. george w. bush still feels that way. try not to read too much into the reports that former president bush now spends his time painting oil portraits of himself, trying to get, self portrait in shower, self-portrait in bathtub. maybe that's just a coincidence. maybe he is not trying the get clean. maybe he to get saddam's nuclear weapons. we know that vice president dick cheney still believes that. but the country no longer believes that. some of the post-9/11 national security changes that we made as a country obviously persist. there is still a department of homeland security there is still this new treatment of the cia as if it is a branch of the military there is still a patriot act . but much of what president barack obama has done over the last four years heading into now his second term has been systematically undoing some of the major decisions of the george w. bush years. for example, the only decision and accomplishment of president obama 's first term that is ranked more popular with the american people than killing osama bin laden , the only thing more popular than that was his decision to end the war in iraq . within days of taking office, president obama also issued an executive order , making clear that anything the previous administration did to cast some pseudo legal veneer over torture, that was over. that executive order made clear that torture was and is illegal. the president also ordered that the cia stop operating secret prisons around the world. after moving quickly, as i mentioned in the war in iraq , the new president also moved eventually toward ending the war in afghanistan as well. the end of that war is still ahead, but it is on its way. there is, though, one vestige of the previous administration that it's not only remarkable that it's still around, it's remarkable that it's still around because everybody thought it would be gone by now. everybody left, right, and center thought it would be again not just by now, but they thought it would be gone early on in the first term of the obama presidency. one of the things that we decided to do as a country after 9/11 that we had never done before is something that everybody expected to be dialed back very quickly by the new administration . nobody expected it to survive. but it is still here, and it is why we have this. this is a prison in illinois that has nobody in it. it's on 140 acres near the mississippi river . it is surrounded by an electrified fence that is capable of carrying 7,000 volts. it has hundreds of surveillance cameras. it has hundreds of motion detectors. it has armed inner perimeter towers. it has armed outer perimeter towers. it is a state-of-the-art maximum security prison built in 2001 and nobody is home. nobody is this. this prison was originally built to be used by the state of illinois , which never had the money to run it and has never put anybody in it. by 2009 , when we got our new president, and he said two days after taking office that guantanamo bay prison was going to close, this prison in thompson , illinois , supposedly won the george w. bush isn't president anymore maximum prisoner lottery. congratulations, thompson , illinois . everybody knew that guantanamo was going to close. in the 2008 presidential campaign , it was not just barack obama who was in favor of closing guantanamo . the guy from the other party who he ran against was also in favor of closing guantanamo , as also planning to do so.

>> i believe we should close guantanamo and work with our allies.

>> it was just barack obama and john mccain who said that they would close guantanamo if they became president. it was also the guy who was still president, the guy who had opened up guantanamo in the first place.

>> i'd like to end guantanamo . i'd like it to be over with.

>> everybody knew that guantanamo was going to close. there was nobody against it. the prisoners who were still there when barack obama became president, well, the expectation was that a lot of them would continue to be processed the way that hundreds of them had already been processed by president george w. bush , which is that they would be sent to some other country. they would be repatriated. for the prisoners that were not going to be released anywhere for say the marquee prisoner who was ever held at guantanamo , khalid shaikh mohamud, the expectation for guys like him was they wouldn't get out of off juror pseudo limbo in cuba. they would get off that legal limbo that we hold in this prison offshore in a communist country that we don't have relations with and get out of that limbo and come here and face justice. attorney general eric holder announced november 2009 that khalid shaikh mohamud, the planner of the 9/11 attacks would face trial. he would be treated like a terrorist, like the blind sheik had been treated, abdel al ramen, or zacarias moussaoui . they were all convicted in u.s. courts and are currently in prison at federal maximum security facilities across the country. we as a country have experience prosecuting, convicting, and housing for life very dangerous people , including international terrorism suspects. that's why thompson , illinois , had competition when they said they want these guys. that's why thompson , illinois , had to compete with places like harden, montana, and standish, michigan when they decided to seek the relatively lucrative labor intensive business of locking these guys up in their maximum security prison . and that's why the city of new york initially greeted the news of khalid shaikh mohamud's forthcoming trial at the scene of his crime as not just justice, but poetic justice . and then we lost our nerve. what happened? the politics of the past administration or something decided to come back. new york officials who initially responded to the khalid shaikh mohamud announcement day saying yes, let's do it. it's fitting that he face trial here where he killed so many americans. we can handle it. we are not afraid that was the initial response. but then they changed their minds and decide they'd were against it. in illinois , a republican congressman who was running for senate, who eventually won, he decided to change his campaign website to no terrorists in illinois .com. don't send those guys to thompson , never mind that the state was excited to win that contest. and the whole thing unravelled. and then it fell apart. and that was in late 2009 , early 2010 . it was more than three years ago now when that plan fell apart. and since that time, nobody, no new prisoners have been added to guantanamo . there are still 170 some odd prisoner there's. the president still says he wants to close guantanamo . we're still just as capable of trying and imprisoning terrorism suspects as we were before when the plan fell apart. maybe we're even more so now as we have tried and convicted even more terrorism suspects in the past three years, including the times square bomber, faisal and abdul farouk abdulmutallab. but the frustration of this previous administration lingers on. when it comes to fixing what went wrong in that era, this is not all that complicated an issue. the plan to close it was fairly simple. the only reason it didn't happen is that congress , elected officials , democrats and republicans freaked out and decide they'd were scared of their own shadow back in 2009 and 2010 , and then congress acted to say no, no, no, the president can't do this. they decided to not do what everyone left, right and center had previously agreed needed to be done and would be done. and so we just got stuck by dent of congress keeping this open from the previous administration with no plan of keeping it open other than hoping the prisoners might die of their own accord if we leave them there long enough. it's not 2009 or 2010 anymore. a lot that is in our politics feels different now in 2013 than it felt in 2009 . is this still impossible? and is anyone still working on it? i should also mention that quietly, very quietly, a couple of weeks before the election in october, the obama administration decided to do an end-run around congress when it comes to that big empty prison in thompson , illinois . congress had been blocking the federal government from buying that empty prison for any purpose, just in case any purpose might include putting prisoners from guantanamo there. but on october 2nd , quietly the department of justice wrote a check to illinois for $165 million to buy that maximum security prison . that prison that once upon a time was going to be guantanamo north, and everybody thought that was a great idea. it isn't scheduled to be guantanamo north anymore. nothing is. but why couldn't it be? i mean, george w. bush does not admit that invading iraq was the wrong decision. but even he admitted along time ago that guantanamo was a mistake that should be shut down. why is it still open? joining us now is jonathan heyfetz. thanks for being here.

>> my pleasure.

>> i am making the process of what it would take to close guantanamo simpler than what it would be than what be the dispensation of all of the prisoners. if congress changed its mind, though, and decided to stop the administration from blocking it, that plan that they work working on in 2009 and 2010 , could they still do it?

>> absolutely. the main obstacle now is the political obstacle and the legal obstacle, the legislation that congress has put in place that bars the transfer of any guantanamo detainee to the united states for any purpose, federal trial, or even continued detention. so once if that legislation were to stop, the administration could bring detainees here. in addition, it's important to mention that approximately half of the prisoners at guantanamo , over 80 of the prisoners there have been cleared for release by the administration . so these are people the administration says we don't even want to hold anymore. but congress has placed significant restrictions on transferring them to their home countries or third countries which makes it difficult to close guantanamo for that reason as well.

>> it is overstating the case right now to say that the path that we are on, if no further action is taken, is actually to just hope that those prisoners die and thereby the problem goes away?

>> we are on a -- it's a spiral of inertia. we are the -- the only way to get out of guantanamo at this moment, there are two ways, to be blunt. you can either die in the prison, or you can be convicted by a military commission for war crimes and be given a sentence, which in many cases, except for the 9/11 perpetrators might just be the time you have served, and you get sent home. you can either die and/or be convicted as a war criminal and get out that way. otherwise you're really fated for legal limbo.

>> if you were a prisoner or a lawyer for a prisoner who was facing legal dispensation, you were in this situation, looking at the history of terrorism prosecutions in the united states versus military prosecutions for war crimes , what tends to produce a stricter sentence and a more i guess a more reliable path to a guilty verdict for the prosecution?

>> there is no question about it, federal courts are -- produce a fair trial , but they also produce severe sentences for those who are convicted. but right now we've got khalid shaikh mohamud, the most important terrorism suspect probably in the history of the united states being tried in a proceeding at guantanamo that really resembles a circus. it's just come out that the military has been listening. they have devices in the rooms where the lawyers interview their clients, and they're equipped with listening devices. and the commander of the prison apparently didn't even know about it. so this is our marquee federal criminal trial from 9/11, the most important trial, and we elected to go with a court that is untested, untried as opposed to the established federal courts which deliver justice in a fair way.

>> in terms of recent terrorism prosecutions, i mentioned feissle, abdulmutallab, some of the other international, or at least al qaeda -minded terrorism suspects who have been prosecuted in federal courts . did anything happen in the prosecution of any of those suspects or anybody else like them in recent years that should raise the doubts of the courts' ability to handle a trial like that?

>> absolutely not. the federal courts are equipped. they have experienced defense bar, the prosecution, the judges. they're used to handling these cases. obviously issues come up. they're difficult issues, but they deal with them. and the process has integrity. it's a bona fide process.

>> centuries in the making. jonathan hafetz , seton hall professor, thank you for helping us figure this out. i really appreciate it.

>> thank you.

>> i do find that amazing that that hasn't gone away.

>>> here is a zen question. if president obama played a round of golf with tiger woods this weekend and the white house press corps was not permitted to cover it, did it really happen? and do you give a rat's patoot in whether you got to cover it? lessons in inflated self-humility, coming up next.