Tom Wilner: President Obama Could Close Guantánamo Tomorrow If He Wanted To

A collaged photo of President Obama and a guard tower at Guantánamo, the prison he promised to close almost five years ago, but has failed to do so.

Here at "Close Guantánamo," we are sad to report that, since the release of two Algerian prisoners two weeks ago, no further prisoners have yet been freed, even though 84 of the remaining 164 prisoners were cleared for release in January 2010 by an inter-agency Guantánamo Review Task Force established by President Obama when he first took office.

Moreover, some of these men were cleared for release many years before, by military review boards under the Bush administration, and yet they are all still held, because of Congressional obstruction, and because President Obama is unwilling to spend political capital to overcome those obstacles, and do what is necessary to show that America can still believe in justice.

Guantánamo has been back in the news this year, because the prisoners, risking their lives, embarked on a prison-wide hunger strike to show their despair at ever being released or given any form of justice, and the world's media picked up on it. The pressure forced President Obama to promise, in a major speech on national security issues on May 23, to resume releasing prisoners from Guantánamo, but, as is shown by the GTMO Clock we established to show how long it is since the promise, and how many men have been freed, it is now 113 days, and just two men have been released. In Guantánamo, meanwhile, seven months after the hunger strike began, 18 men are still being force-fed.

As we begin to formulate our campaigns for the fall and winter, in the run-up to the 12th anniversary of the prison's opening on January 11, 2014, we're delighted to be posting below a powerful op-ed by the attorney Tom Wilner, who was counsel of record for the Guantánamo prisoners in the case establishing their right to counsel, and in the two Supreme Court decisions confirming their right to habeas corpus. Tom is on the steering committee of "Close Guantánamo," and he and I established the campaign and website on the 10th anniversary of the prison's opening, in January 2012.

Tom's article was published in the Huffington Post, and the version below is slightly edited, to expand a few of his points. Its main message, however, rings out clearly. As Tom notes, "Guantánamo continues to burden U.S. foreign policy, undermining our credibility and providing an excuse for every foreign dictator who abuses human rights." He points out that President Obama stated in May that Guantánamo "needs to be closed," and tells the president that he "must have the courage to follow-up his words with action. Further delay is not tolerable."
- Andy Worthington, September 15, 2013

Guantánamo: The President Could Close It Tomorrow If He Really Wants to
By Tom Wilner

Guantánamo continues to burden U.S. foreign policy, undermining our credibility and providing an excuse for every foreign dictator who abuses human rights. As the president has said: "GTMO has become a symbol around the world for an America that flouts the rule of law." He has also said exactly what must be done: "We've got to close Guantánamo ... It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed."

Great words -- but very little action.

There is a myth circulating that, because the president says he wants to close Guantánamo, he would if he could, but he can't because Congress has stopped him. That is not so. The president has the authority right now in existing legislation to achieve that result by transferring detainees out of Guantánamo.

Congress did amend the National Defense Authorization Act three years ago to prohibit funding for the transfer of any Guantánamo detainee to the U.S. It also prohibited funding for transfers to other countries, unless the Defense Secretary personally certified that the transferred detainee would never engage in terrorist activity. Because no one can give such a personal assurance, that provision effectively blocked transfers. But Congress then amended the law to allow the Secretary to waive that requirement and to transfer detainees to other countries if he finds (1) that the receiving country will take steps to "substantially mitigate" the risk that the detainee will engage in terrorist activity, and (2) that the transfer is in U.S. national security interests.

Those are quite makeable findings. The president has already stated publicly that it is in the U.S. national security interest to transfer all the detainees from Guantánamo. Moreover, many countries have expressed a willingness to accept detainees and have offered to undertake the steps necessary to "substantially mitigate" the risk that the detainee could ever engage in terrorist activity. As Carl Levin, the Chairman of the Senate Armed Services Committee, has pointed out, that provision "provides a clear route for the transfer of detainees to third countries." This week's announcement of the transfer of two prisoners from Guantánamo to Algeria is welcome news and proves Senator Levin's point. It can be done.

The president also has another route available. The law allows the administration to transfer detainees pursuant to a court order. Simply by consenting to court orders for the release, for example, of detainees who have already been cleared, the Justice Department could authorize their transfer free from congressional restrictions. Yet, it has never done so.

There is a great cost to this inaction. The Pentagon recently reported that the Guantánamo prison costs U.S. taxpayers almost a half-billion dollars a year -- an incredible $3 million-plus per prisoner per year, about 40 times the cost of a U.S. Supermax prison. And we are paying that even though most of these men -- 84 of the 164 detainees still there -- were cleared for release more than three and a half years ago by a special task force made up of top U.S. security and law enforcement officials. Yet, they remain imprisoned, and we continue to pay. Why?

Beyond its expense and the harm it causes to our reputation and security, Guantánamo is a terrible human tragedy. During my visits there, I have had to inform prisoners that one of their parents or grandparents or a brother or sister had died, and then sit and watch them cry knowing that they had missed their last chance to say goodbye. Even the worst convicted prisoner in the U.S. is allowed family visits. These men are not. And they have never been convicted, or even tried, and most have been cleared.

The fact is that only a small number of the detainees now at Guantánamo are considered to pose a significant threat. Most were picked up soon after 9/11 in and around Afghanistan and sold into captivity by local tribes people for bounties. They were not the leaders, who are known to have escaped, but at most low level foot soldiers, as well as a lot of innocent people swept up by mistake. It was generally recognized by the summer of 2004 that none of the detainees then at Guantánamo was a significant player. As a June 21, 2004 article in the New York Times reported: "In interviews, dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of al-Qaeda."

It was only after the summer of 2004 that the Bush administration began sending more significant prisoners to Guantánamo from "black sites" far from the conflict in Afghanistan. Ten were sent in September 2004, 14 more -- the "high-value detainees," including Khalid Sheikh Mohammed etc. -- in September 2006, and five more in 2007-08, two of whom are regarded as "high-value detainees." In total, 29 prisoners were transferred to Guantánamo after August 2004. Some have actually been released. One was convicted in U.S. court and is now incarcerated here, and one pled guilty in his trial by military commission. 22 of them are considered potentially as significant threats. These, along with a Saudi who was sent to Guantánamo late in 2003 from a "black site" and has charges filed against him, and three men who have been convicted in trials by military commissions – 26 men in total – represent the universe of potentially significant dangerous detainees at Guantánamo. They should be tried and, if convicted, incarcerated. The others should be transferred out.

The president should do this immediately, exercising his existing authority to transfer the 84 men who have already been cleared, and then continue with the majority of the others.

There is always a risk, of course, that a released prisoner will do something bad. Every judge and governor faces that risk in releasing a prisoner. And, if that happens, the person or political party authorizing the release may well face criticism. But fear of criticism cannot stop us from doing what is right. How do you explain to the 84 cleared men that they must remain in prison because it is politically inconvenient to let them out? How do you explain to the world that we must keep Guantánamo open, even though it stains our reputation and compromises our ability to combat terrorism, because we fear political criticism? The president must have the courage to follow-up his words with action. Further delay is not tolerable.