The Path to Closing Guantánamo

By Andy Worthington, June 17, 2015

On Saturday, six Yemenis were freed from Guantánamo, and resettled in Oman, bringing the prison's population down to 116 men, the lowest total it has been since the first few months of the prison's operation back in 2002. I wrote about the release of the men here, and amended the details of our prisoner list here, and, in response to the releases, I thought it would also be useful to follow up by looking at where we stand with President Obama's long-promised mission to close the prison.

President Obama made his promise to close Guantánamo on his second day in office, pledging to close it within a year. Since failing to keep the promise, he has sporadically stated again his desire to see the prison closed -- most notably two years ago, when a prison-wide hunger strike prompted him to promise to resume releasing prisoners, after a period of nearly three years in which releases had almost ground to a halt, because of opposition in Congress and the president 's refusal to expend political capital overcoming those obstacles.

In April, as I wrote about here, the Washington Post reported, as I paraphrased it, that all the men approved for release in Guantánamo — at the time 57 out of the 122 men still held — would be "freed by the end of the year, and, if Congress proves obstructive, the Obama administration might close the facility before the end of Obama’s presidency by unilaterally moving the remaining prisoners to the U.S. mainland." I added, however, that, realistically, "it might be wisest to view these suggestions as the administration stating its best-case scenario."

In the New York Times on Saturday, Charlie Savage updated the Washington Post's analysis from April, noting how President Obama’s plan to close the prison at Guantánamo, which, Savage noted, "he has criticized as costly and a potent symbol for anti-American propaganda," would have to involve "bringing the remaining detainees into the United States for trial or continued wartime detention in a different prison."

Since 2009, when this idea was first proposed, in relation to a facility in Illinois, many Republicans have opposed that plan, as Savage noted, and, as he also pointed out, "some civil libertarians" as well: those who fear that it will enshrine Guantánamo's injustices -- primarily, these days, indefinite detention without charge or trial -- on U.S. soil. In contrast, here at "Close Guantánamo," Tom Wilner and I, the co-founders of this campaign, and some of our founding supporters, have long maintained that bringing them to the U.S. mainland would actually establish new legal challenges, because there are much stronger safeguards on the U.S. mainland than in America's Cuban outpost to prevent imprisonment without charge or trial.

Under President Bush, that was established when Jose Padilla, a U.S. citizen, was held without rights as an "enemy combatant" and tortured on U.S. soil, but, when challenged, the Bush administration backed down and moved him into the federal court system, refusing to try to defend its claimed right to hold anyone incommunicado and without charging them.

In addition, as Charlie Savage noted, Congress has "outlawed bringing any detainees onto domestic soil" for any reason, in successive versions of the annual National Defense Authorization Act.

In response to the release of the six Yemenis, Republican critics made their usual hyperbolic complaints. Rep. Michael McCaul of Texas, who is the chair of the Committee on Homeland Security, criticized the transfers, as did several other Republicans.

In a statement, Rep. McCaul claimed, "Despite the high terror threat to our country, the president continues to open the jail cells at Guantánamo Bay, giving potential terrorists the ability to return to the fight." He added, "The president needs to be up front with the American people, rather than have the release of dangerous detainees buried in a Saturday news dump."

This was nonsense on every conceivable front. There is no "high terror threat," only the politics of fear peddled by cheap politicians and media pundits, and anyone interested can find out easily enough -- from my report, for example -- why the six men freed cannot be regard as terrorists -- because they never were.

In addition, it was untruthful to suggest that the president wasn't "upfront" about releasing the men. As stipulated in the laws made by Congress (primarily by Republicans), before anyone can be transferred from Guantánamo, the defense secretary must sign an authorisation declaring that it is safe to do so, and Congress has to receive 30 days' notice of the proposed transfer.

Guantánamo provisions in this year's NDAA

The latest release of prisoners took place while the Senate is considering amendments to this year's NDAA, which currently maintains the ban on bringing prisoners to the U.S. mainland for any reason, as well as the certification and notification requirements regarding any planned prisoner transfers. The House of Representatives has passed its own outrageous version of the bill that, as Charlie Savage noted, would tighten the limits on the transfer of prisoners "in a way that could in effect stop any more releases, including blocking the departure of the 51 men waiting on the transfer list." 43 of those 51 men are Yemenis.

The Republicans have controlled the House of Representatives for several years now, whereas Democrats ran the Senate until the mid-term elections in 2014, and in 2013 -- and last year before control passed to the Republicans -- passed versions of the NDAA that made it easier for the administration to release prisoners from Guantánamo.

This year, however, another option has emerged, via Sen. John McCain, who took over as chair of the Senate Armed Services Committee from Sen. Carl Levin, who was a powerful influence for sanity in Congress. McCain has put forward a proposal that, as Charlie Savage described it, "would instead call for an up-or-down vote in both chambers of Congress on whether to approve an administration plan for moving the remaining detainees to a prison on American soil." As Savage noted, "It is not clear what circumstances would generate sufficient political support in Congress, especially among the Republican majority in the House of Representatives, to approve any such plan," but it may be that McCain can exert some influence to support his plans that Democrats would be unable to achieve.

In contrast, the White House, as Savage put it, "argues that Congress should simply drop the restrictions", an eminently sensible proposal, but one that only highlights the extent to which, in Congress, cynical political maneuvering has replaced doing the right thing when it comes to Guantánamo.

Charlie Savage also noted how the Senate bill "would also let the military temporarily bring a detainee into the United States for medical treatment," another sensible suggestion that is currently prohibited -- and remains so in the House's version of the bill. As Savage noted, "The cost and difficulty of transporting specialized medical equipment and doctors to the prison has been an issue of recurring concern as the detainee population ages."

Both bills impose a ban on transferring any prisoners to Yemen, but as I have repeatedly noted, there is consensus, across the entire U.S. establishment, that releasing prisoners to Yemen is unsafe, because of the security situation in the country. Until the end of last year, this was a problem, because President Obama had not found any other homes for the Yemenis who make up 43 of the 51 prisoners approved for release. Since last November, however, he has released 18 Yemenis to third countries, and, presumably, the envoys for the closure of Guantánamo -- Paul Lewis in the Pentagon, and Charles Trumbull as the acting envoy in the State Department -- are looking at other countries that will be prepared to help, with more Gulf countries presumably being an option.

McCain's proposal -- which he hailed as a "bipartisan compromise" and a "workable solution" crafted with Sen. Joe Manchin (D-W.Va.) -- was passed by the Senate Armed Services Committee on May 14, and when it did The Hill wrote about it, noting that, while McCain is "one of Obama’s harshest critics on foreign policy, he supports closing the controversial prison camp, and has proposed what could be Obama’s last shot at closing the prison." McCain’s bill, as The Hill put it, "would extend current restrictions on transferring detainees out of Guantánamo and restore ones from 2013, but also require the administration to submit a plan to Congress on closing the military detention facility."

The HIll added, "The plan would include a case-by-case determination on the disposition of each remaining detainee, and address the legal challenges of bringing them to the United States. The administration would also be asked to spell out what additional legal authorities that would be needed, and how the Pentagon would treat future combatants captured under the laws of war."

The Hill also noted that prisoners "would have limited rights under the bill if transferred to the U.S., to allay concerns they would have the same rights as American citizens."

That latter point is troubling, of course, but it is unclear if, otherwise, President Obama has a real opportunity to close Guantánamo before he leaves office -- unless he were to attempt to do so by executive order, which would, of course, thoroughly alienate Congress.

McCain's bill, predictably, attracted criticism from Republicans. Sen. Jim Inhofe (R-Okla.) said that, although he voted for the legislation in committee, he planned to fight it on the floor. In a statement, he said, with the usual hyperbole of Republicans regarding Guantánamo, “Members from many states have voiced concern with housing these terrorists in their states, especially now that ISIL has demonstrated the ability to call up sleeper cells to attack locations here in our country. I don’t want a target in Oklahoma.”

Nevertheless, The Hill pointed out that McCain would only need the support six Republicans, in addition to the Democrats, "to stop any attempts to strip the Guantánamo provision from the bill" in the Senate, although it could then "hit a brick wall in the House, whose version of the bill "would extend a ban on detainee transfers to the United States, as well as on modifying or constructing any facilities in the U.S. to house the detainees." Just before the bill passed on May 15, the House also adopted an amendment to extend those restrictions for two years. The House bill "would also restore the more stringent certification requirements that Congress did away with" in the legislation for 2014 and 2015, and would "block transfers to any 'combat zone.'"

With some understatement, The Hill noted that this "would limit the administration’s options," and added that human rights groups "decried the House’s move, saying it would make it nearly impossible to transfer 102 of the 122 remaining detainees from the facility."

Matt Hawthorne, Policy Director at the National Religious Campaign Against Torture, said in a statement on May 15, "The Guantánamo provisions in the House bill are an attempt to block nearly all transfers out of Guantánamo and to ensure that the prison there remains open forever." It is a comment with which we at "Close Guantánamo" agree.

Speaking about the Armed Services Committee bill, John McCain expressed his hope that, "if we complete ... this proposal about Guantánamo Bay -- which I am convinced is a very workable proposal -- the president would be then more inclined to sign the bill, since we all know that [closing the prison] was the president's commitment when he came to office back in 2008."

The Hill noted that, although earlier this year it "seemed that McCain had backtracked on his support for closing the facility, after he supported legislation from Sen. Kelly Ayotte (R-N.H.) that would have added more restrictions on transfers," he "said his position has remained the same: that if the president proposed a plan for closing Guantánamo, he would be willing to work with him."

"I've always been in favor of closing Guantánamo because of the image Guantánamo has in the world, whether it's deserved or not deserved," he said.

The Senate Armed Service Committee's amendments can be found on the Just Security website -- with additional discussion -- and the full text of the Senate bill can be found here, with the Senate Armed Services Committee’s version here.

On June 4, while it was being debated in the Senate, Just Security noted that "White House staff advised the President to veto the SASC bill, in part due to 'unwise' and 'unnecessary' restrictions it places on the closure of the detention facility at Guantánamo and the transfer of detainees."

The future of Guantánamo, then, is still very much in the air, with just a year and a half left of the Obama presidency. Here at "Close Guantánamo," we fervently hope a solution can be reached before the inauguration of the next president, in January 2017, because by that point, he or she will be entering the White House just a week after the 15th anniversary of the opening of the prison at Guantánamo -- an anniversary that no American president should have to mark, let alone on their inauguration.

What the White House says

Below are excerpts from the White House's Statement of Administration Policy regarding the SASC proposals:

The Administration strongly objects to provisions of the bill that would impede efforts to close the detention facility at Guantánamo Bay, Cuba. As the Administration has said many times before, operating this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.

While the Administration appreciates the additional flexibility provided by section 1034, which would permit the temporary transfer of detainees to the United States for certain medical care, other provisions of the bill are more restrictive than existing provisions to which the Administration has repeatedly objected. Not only would provisions of the bill extend existing restrictions, they would impose additional unwise and unnecessary ones that would further impede efforts to responsibly close the facility. While the bill would relax certain of these restrictions if Congress approves a plan to close the facility by joint resolution, this process for congressional approval is unnecessary and overly restrictive. Sections 1031 and 1032 would prohibit the use of funds to construct or modify any facility in the United States to house detainees or to transfer Guantanamo detainees to the United States, except in the limited case of temporary medical transfers authorized by section 1034, until Congress approves a plan to close the facility. Sections 1033 and 1035 would impose more onerous restrictions than current law does on transfers abroad and would prohibit certain categories of transfers entirely. These provisions undermine our national security by limiting our ability to act as our military, diplomatic, and other national security professionals deem appropriate in a given case. Under existing law, the Secretary of Defense is already required to make a determination that actions have been or will be taken to substantially mitigate risks to the United States or U.S. persons or interests posed by detainee transfers abroad.

The President has objected to the inclusion of these and similar provisions in prior legislation. The restrictions contained in this bill are unwarranted and threaten to interfere with the Executive Branch’s ability to determine the appropriate disposition of detainees and its flexibility to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Sections 1032, 1033, and 1035 would, moreover, violate constitutional separation-of-powers principles under certain circumstances, and section 1035 could in some circumstances interfere with a detainee’s right to the writ of habeas corpus.

The Administration also strongly objects to the requirements in sections 1033(b)(2) and 1037, which would require the Secretary of Defense to provide Congress with diplomatic assurances regarding detainee transfers and reports containing such assurances. Across two administrations, the Executive Branch has consistently informed Congress and represented before U.S. courts that disclosing such diplomatic assurances from foreign governments would have a chilling effect on those countries’ willingness to cooperate on detainee transfers.

The Administration objects finally to the additional reporting requirement in section 1036, which would require the Secretary of Defense to submit an unclassified report to Congress on past detainee assessments produced by the Joint Task Force-Guantanamo. The Administration does not believe this section, as drafted, is a productive measure and will treat this provision, along with sections 1033(b)(2) and 1037, consistent with the President’s constitutional authority in this area.

And below, for completeness, are the proposals from the SASC bill (on pp. 203-5):

What the Senate Armed Services Committee version of the NDAA says

Subtitle D—Counterterrorism

Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantanamo Bay, Cuba (sec. 1031)

The committee recommends a provision that would prohibit the use of funds to construct or modify facilities in the United States to house detainees transferred from Guantanamo. The prohibition would only be lifted if the Secretary of Defense submits a plan for the disposition of all detainees, as provided in a subsequent section, and the plan is approved by Congress.

Limitation on the transfer or release of individuals detained at United States Naval Station, Guantanamo (sec. 1032)

The stated policy of the United States remains to close the detention facilities at Guantanamo as soon as possible. The committee has long requested a detailed plan for the disposition of all individuals held there. Thus far, the Secretary of Defense has failed to provide such a plan. Prior to authorizing the transfer of detainees into the United States the committee seeks a comprehensive plan that will describe the disposition of all detainees, including where each detainee will be held or transferred, the costs associated with continued detention, the legal risks of any transfer, and what additional authorities are needed.

Therefore, the committee recommends a provision that would prohibit the transfer to the United States of detainees in Guantanamo except for detention, trial, or incarceration. Such domestic transfers could only occur, however, after the Secretary of Defense determines that the transfer is in the national security interests of the United States, determines that appropriate actions have been taken or will be taken to address any risk to public safety; and notifies appropriate committees of Congress.

The limited authority to transfer detainees to the United States under this provision would only become effective after the Secretary of Defense submits a report detailing a plan for all individuals held at Guantanamo and Congress approves the plan. The provision would provide expedited procedures for congressional consideration of the submitted plan.

Reenactment and modification of certain prior requirements for certifications relating to transfer of detainees at Untied States Naval Station, Guantanamo Bay, Cuba, to foreign countries and other foreign entities (sec. 1033)

The committee recommends a provision that would prohibit the use of any amounts authorized to be appropriated or otherwise made available to the Department of Defense to be used to transfer or release any individual detained at United States Naval Station, Guantanamo Bay, Cuba, to the individual’s country of origin, any other foreign country, or any other foreign entity. This prohibition would apply unless the Secretary of Defense, in consultation with the Secretary of State and the Director of National Intelligence, provides a written certification to Congress addressing several requirements at least 30 days prior to the transfer of any such individual. This section would also prohibit the Secretary of Defense from using any funds for the transfer of any such individual to the custody or effective control of the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual transferred from United States Naval Station, Guantanamo Bay, Cuba, to the same country or entity who engaged in terrorist activity subsequent to their transfer. This section would allow the Secretary of Defense to waive certain certification requirements if the Secretary determines that alternative actions will be taken, that actions taken will substantially mitigate risks posed by the individual to be transferred, and that the transfer is in the national security interests of the United States. Whenever the Secretary uses the waiver, the Secretary must provide a report that includes a copy of the waiver and determination, a statement of the basis for the determination, and a summary of the alternative actions to be taken. The section would also require the certification to include a description for the cooperation for which favorable consideration was so given and a description of operational outcomes, if any, affected by such cooperation. Finally, this section would repeal current law, as contained in section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66).

This provision would expire once a plan for the disposition of all detainees is submitted to Congress and that plan is approved by Congress, as provided for in a subsequent section. The notification requirements of section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66) would, at that point, govern foreign transfers.

Authority to temporarily transfer individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to the United States for emergency or critical medical treatment (sec. 1034)

The committee recommends a provision that would allow for the temporary transfer of detainees held at Guantanamo Bay, Cuba, to a Department of Defense medical facility in the United States for the sole purpose of providing the individual medical treatment if the Secretary determines that: the medical treatment is necessary to prevent death or imminent significant injury or harm to the health of the individual; the medical treatment is not available to be provided at United States Naval Station, Guantanamo Bay, Cuba, without incurring excessive and unreasonable costs; the estimated costs of the treatment would be cheaper in the United States; and the Department of Defense has provided for appropriate security measures for the custody and control of the individual during any period in which the individual is temporarily in the United States. The provision also requires notice to Congress and limitations on the exercise of the authority to provide that the individual will be returned to United States Naval Station, Guantanamo Bay, Cuba.

Prohibition on use of funds for transfer or release to Yemen of individuals detained at United States Naval Facility, Guantanamo Bay, Cuba (sec. 1035)

The committee recommends a provision that would prohibit the use of funds authorized to be appropriated or otherwise made available to the Department of Defense to transfer, release, or assist in the transfer or release of any individual detained in the custody or under the control of the Department of Defense at United States Naval Station, Guantanamo Bay, Cuba, to the custody or control of the Republic of Yemen or any entity within Yemen.

Report on current detainees at United States Naval Station, Guantanamo Bay, Cuba, determined or assessed to be high risk or medium risk (sec. 1036)

The committee recommends a provision that would require the Secretary of Defense to provide a report to Congress, in unclassified form, listing the names of all individuals detained at United States Naval Station, Guantanamo Bay, Cuba, who have been assessed by the Joint Task Force Guantanamo to be a high or medium risk to the United States, its interests, or allies.

Report to Congress on memoranda of understanding with foreign countries regarding transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba (sec. 1037)

The committee recommends a provision that would require a report of the Secretary of Defense setting forth the written memorandum of understanding between the United States Government and the government of the foreign country concerned regarding each individual detained at Guantanamo transferred to a foreign country during the 18-month period ending on the date of the enactment of this Act or, if there was no written memorandum of understanding, the report shall contain an unclassified statement of that fact.

POSTSCRIPT June 19: The Senate has passed its version of the bill with the amendments proposed by Sen. McCain and the Senate Armed Services Committee. As the Washington Post reported, "The Senate voted Thursday to pass a $612 billion defense bill, setting lawmakers up for a showdown with the White House over measures that would bypass mandated spending cuts and threaten President Obama’s plan for closing the military prison at Guantánamo Bay, Cuba." The bill was passed by 71 votes to 25 vote, and. Sen. McCain told reporters "he hoped the bill would become law despite a White House veto threat," as the Post put it.

The Post also noted:

The bill’s provisions on Guantánamo Bay are particularly sensitive for the White House as Obama approaches the end of his second term and officials race to make good on his 2009 promise to close the detention facility.

The legislation tightens restrictions on resettling detainees in other countries, a key aspect of Obama’s closure plan. Officials have sent more than a dozen prisoners to third countries since late last year in hopes that a smaller Guantánamo population would make it easier to shut the prison.

The bill would require the Pentagon to certify that countries welcoming Guantánamo detainees will ensure they "cannot engage or reengage in any terrorist activity," and it would also ban sending any detainees home to Yemen. Yemenis make up the largest single group among the 51 prisoners cleared for transfer.

While the bill contains a provision that would allow the Obama administration to transfer prisoners to the United States for trial or detention, it would require congressional approval of a White House plan for doing so.

The Post also quoted from the White House’s veto threat, in which it was stated, "Not only would provisions of the bill extend existing restrictions, they would impose additional unwise and unnecessary ones that would further impede efforts to responsibly close the facility."

What now? Serious wrangling behind the scenes prior to the consolidation of the Senate and House bills in December. Will Obama veto? Watch this space.