Will Carl Levin's Amendments to the NDAA Help President Obama Close Guantánamo?

Campaigners with the group Witness Against Torture protest on the steps of the Capitol on January 21, 2010, the day that Guantánamo was supposed to be closed, according to the promise that President Obama made on taking office exactly a year before. (Photo: Mike Bendetti, via Flickr).

By Andy Worthington, November 12, 2013

Ever since President Obama took office in January 2009, and almost immediately promised to close George W. Bush's "war on terror" prison at Guantánamo Bay, Cuba, he has faced opposition from Congress. Lawmakers only took four months to begin passing legislation designed to tie his hands, and, in recent years, they have imposed restrictions of increasing severity designed to keep Guantánamo open, and to prevent any more prisoners from being released, for reasons that involve either hysteria, cynical fearmongering or bleak games of political football.

It is to be hoped that this situation is about to come to an end, with some decisive intervention by key lawmakers in Congress, but it is never worth holding one's breath for justice to be done where Guantánamo is concerned.

Rebellions in Congress, 2009-2012

The first rebellion against the president's promise to close Guantánamo came in May 2009, when the Senate voted, by 90 votes to 6, to eliminate $80 million from planned legislation intended to fund the closure of Guantánamo, and to specifically prohibit the use of any funding to “transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States.” Only six Democrats voted against the legislation, and three others abstained.

In June 2009, the House of Representatives followed up, passing, by 259 votes to 157, a spending bill turning down the administration’s request for $60 million to close Guantánamo, which also placed limits on the government’s ability to transfer prisoners to the U.S. and to other countries, and prohibited funds from being used to release Guantánamo prisoners into the United States -- something that President Obama had shown no willingness to do. In fact, it was President Obama himself who, in May 2009, had scuppered a plan by White House Counsel Greg Craig to bring some of the Uighurs in Guantánamo -- Muslims from China's Xinjiang province, who faced persecution if they were repatriated -- to live in the U.S.

In January 2010, following a failed airline bomb plot hatched in Yemen, President Obama also imposed a moratorium on releasing any cleared Yemeni prisoners, just a few weeks before the inter-agency Guantánamo Review Task Force he had appointed to review all the Guantánamo prisoners' cases issued its final report, recommending that 156 of the 240 prisoners held when he took office should be released.

In his first year in office, President Obama had released 42 of those 156 men, with many going to third countries because it was unsafe for them to be repatriated, and in 2010 he released another 24, but in the last three years just seven prisoners have been released.

A major reason for this is the decision by lawmakers to insert passages into the annual National Defense Authorization Act for 2011 (approved in January 2011) banning the use of any funds to bring any Guantánamo prisoners to the U.S. mainland for any reason -- even to face trials -- and also prohibiting the use of funds to purchase or construct any facility on the U.S. mainland for housing prisoners currently held at Guantánamo. Another passage prevented the president from releasing any prisoner unless the defense secretary signed off on the safety of doing so.

The bans were intended to scupper the administration's plans, announced at the end of 2009, to hold federal court trials for the alleged 9/11 co-conspirators, and to buy a prison in Illinois to hold prisoners transferred from Guantánamo so that the Cuban facility could be shut down, and they achieved their aim. The 9/11 trial was dropped, and the prison plan abandoned.

In addition, the imposition on the defense secretary was an innovation intended to prevent prisoners from being released to countries that lawmakers regarded as dangerous -- a move which I described at the time as "an unwarranted and unconstitutional assault on the president’s powers."

There was worse to come, however. In the versions of the NDAA for 2012 and 2013, as well as insisting that the defense secretary would have to certify that it was safe to release any prisoner that the administration wanted to release, lawmakers also imposed a ban on releasing any prisoner to any country that they regarded as having a single example of recidivism related to former Guantánamo prisoners; in other words, if it was alleged, in the extremely dubious claims about recidivism that emerged, at regular intervals, from the Pentagon or the Office of the Director of National Intelligence, that a single released prisoner had "returned to the battlefield," the administration was prevented from releasing any more prisoners to that country.

Although it is important to remember that Sen. Carl Levin arranged for a waiver to be introduced into the legislation, so that the president and the defense secretary can bypass Congress and release prisoners without any restrictions if they regard it as being in the national security interests of the United States, the president has chosen not to do so.

Here at "Close Guantánamo," we accept that the president has been pushed into a difficult place by Congress, because, if a released prisoner -- already cleared by the task force -- should engage in activities designed to hurt the U.S., the blame will be laid on the president. However, we believe he should have done more to fight back against the cheerleaders for Guantánamo in Congress, and the spineless members of his own party who have repeatedly voted against him -- and we also believe that, if necessary, he should use his waiver on the basis that the importance of righting the wrong that is Guantánamo is more important than careful calculations about short-term political costs.

Hopes for the new National Defense Authorization Act, with its relaxation of restrictions on releasing and moving Guantánamo prisoners

Nevertheless, backing in Congress is essential if the president's promise to close Guantánamo is ever to be revived, and to that end the current hope is that the Senate can be persuaded to accept provisions in the NDAA for 2014 that might make the closure of Guantánamo a reality.

As Massimo Calabresi explained an article in Time last week, "In a quiet new push for its goal of ending detention at Guantánamo Bay, the White House is lobbying swing-state Democrats ahead of votes expected before Thanksgiving. The votes could mark a turning point in President Obama’s long and frustrating push to shut down the controversial prison camp and set up an end-of-the-year showdown with the Republican-led House."

The key to this new push for progress on closing Guantánamo is Sen. Carl Levin, the chair of the powerful Senate Armed Services Committee. In June, in what Charlie Savage of the New York Times described at the time as "closed-door proceedings," the committee approved a version of the NDAA which would allow President Obama to transfer prisoners to the U.S. mainland to face trial, or to be imprisoned, thereby making the closure of Guantánamo possible. The committee's proposal also allows prisoners to be temporarily moved to the U.S. mainland for medical treatment that cannot be provided at Guantánamo, and, as Calbresi noted, Levin's version of the bill "would shift the decision to transfer detainees to a foreign country from the White House to the Pentagon, offering political cover to Obama."

In June, Charlie Savage elaborated on what the changes would mean on the ground:

Under current law, the secretary of defense must certify that a long list of security conditions have been met before a detainee may be sent to another country. Since Congress enacted the limit in January 2011, transfers of low-level detainees from the prison have dried up. Lawmakers later gave the Pentagon the power to waive most of those restrictions on a case-by-case basis, but the Obama administration has not exercised that authority.

Under the Senate bill, the defense secretary would instead need find only that steps have been taken to substantially mitigate any risk that a released detainee would engage in terrorist activity after being freed and that such a transfer was in the national security interests of the United States -- the same more flexible standard he must meet under current law to issue a waiver.

This would be a huge improvement, although it would still require political will on the part of the president to move forward.

Encouragingly, however, the prospects for success in the Senate are greater than in previous years because of a lower threshold for the votes required to implement the legislation. As Calabresi noted, "Where sixty votes were required before, Democrats -- who hold 53 seats, and can usually rely on two independent allies -- now only need a simple majority." In addition, because the provisions "emerged as part of the larger, must-pass defense bill from Levin’s committee, their backers will only need 50 votes to defend them, rather than the 60 that would be needed on the Senate floor to attach them." Calabresi added, "Opponents would need to filibuster the whole defense bill to block the provisions."

Nevertheless, Calabresi added that it is unclear whether President Obama and Lisa Monaco, the Assistant to the President for Homeland Security and Counterterrorism, can secure enough votes. A Democratic staffer supporting Levin's provisions told him, “The politics remain difficult. We’re in the mid-40s or thereabouts, so it’s not impossible.”

Even if Sen. Levin's version of the NDAA passes the Senate, it would still have to be reconciled with what Charlie Savage described in June as a "rival version" approved by the Republican-led House of Representatives, which "keeps the existing transfer restrictions intact -- including a flat ban on transfers into the United States for any purpose -- and tightens them in one respect by barring any repatriations to Yemen," the latter being, no doubt, a response to Obama's announcement, in May, that he was lifting his moratorium on releasing cleared Yemenis.

The Senate version of the NDAA is expected to be debated this week or next week, and here at "Close Guantánamo" we hope that it passes. Responsibility on the part of lawmakers, and concrete plans for closing Guantánamo are urgently needed, and both are offered in the version of the legislation put together by Sen. Levin.

Note: Please follow the links here to ask your Senator to vote for Sen. Levin's amendment.