Obama Officials Confirm That Nearly 24 Guantánamo Prisoners Will Be Freed By the End of July

Code Pink activists use a photo of President Obama, and his own words, to make a powerful point about the need to close Guantanamo outside the White House on May 10, 2013 (Photo: Pat Benic/UPI).

By Andy Worthington, May 28, 2016

Last week there was confirmation that the Obama administration is still intent on working towards the closure of the prison at Guantánamo Bay before President Obama leaves office, when officials told Spencer Ackerman of the Guardian that there is an "expectation" within the administration that 22 or 23 prisoners will be released by the end of July "to about half a dozen countries."

80 men are currently held, so the release of these men will reduce the prison’s population to 57 or 58 prisoners, the lowest it has been since the first few weeks of its existence back in 2002.

As the Guardian explained, however, the officials who informed them about the planned releases spoke on condition of anonymity, because "not all of the foreign destination countries are ready to be identified." In addition, "some of the transfer approvals have yet to receive certification by Ashton Carter, the defense secretary, as required by law, ahead of a notification to Congress."

The releases will largely fulfill a promise made in January by Lee Wolosky, the State Department’s envoy for the closure of Guantánamo, who said at the time that the government would release all the prisoners approved for release "by this summer."

Currently, 28 of the remaining 80 prisoners have been approved for release – 15 by the high-level, inter-agency Guantánamo Review Task Force (27/6/13) that President Obama appointed shortly after taking office in January 2009, and 13 by Periodic Review Boards, another high-level process, established in 2013 to review the cases of all the prisoners not already approved for release by the task force, or facing trials (and just ten men are in this latter category).

The remaining 42 men are all eligible for Periodic Review Boards, which the administration has promised to complete before Obama leaves office. 35 are awaiting their reviews, or the results of their reviews, while just seven men have had their ongoing imprisonment approved by the boards.

Since they began in November 2013, the PRBs – which are akin to parole boards -- have approved a total of 22 men for release. This is a success rate for the prisoners of 76%, and demonstrates that the task force was severely mistaken when, in 2010, it described 46 of the men who were later made eligible for PRBs as “too dangerous to release,” while acknowledging that insufficient evidence existed to put them on trial -- meaning that the so-called evidence was profoundly unreliable, largely produced through interrogations involving torture or other forms of abuse, or through prisoners being bribed with better living conditions.

25 other men were recommended for military commission trials by the task force, but they too were added to the list of prisoners eligible for PRBs when the basis for prosecutions largely collapsed in 2012-13, after appeals court judges dismissed some of the few convictions secured in the much-criticized trial system, correctly ruling that the war crimes for which the men had been convicted – primarily, providing material support for terrorism and conspiracy – had been invented as war crimes by Congress.

It is impossible to estimate how many of the remaining PRBs will end with prisoners being approved for release, but it would seem reasonable to suggest that perhaps another 20 or so men will be recommended for release, leaving somewhere between 30 and 35 prisoners as what, in Spencer Ackerman’s words, "administration officials tend to call an 'irreducible minimum.'"

Finally closing the prison, however, as President Obama promised when he first took office seven years and four months ago, remains elusive, because of a Congressional ban, included in the annual National Defense Authorization Act every year since 2011, on bringing prisoners to the U.S. mainland for any reason. As Spencer Ackerman described it, the ban "has made the parole-and-transfer process the likeliest mechanism through which Obama can come close to accomplishing his long-thwarted goal of closing down Guantánamo."

For next year’s NDAA, as I reported recently, the Senate Armed Services Committee has proposed that some prisoners should be able to make federal court plea deals and be imprisoned in other countries, and that seriously ill prisoners should be allowed to visit the U.S. mainland for operations, but it remains to be seen if the proposals will be passed.

Already, however, the House of Representatives, which passed its version of the bill on May 18, restricts the release of prisoners like never before by, as the Guardian described it, "preventing the administration from transferring any detainee to a country subject to a state department travel warning -- based on a standard far lower than a risk of terrorism or insurgency." That list, as the Guardian noted, "currently includes all of Europe."

As the Guardian also explained, "The White House has threatened to veto the defense bill, citing the Guantánamo provisions, among other reasons. Yet such veto threats have become an annual ritual. Every defense bill since 2011 that Obama ultimately signed included Guantánamo detainee restrictions."

As a result, it may be that an executive order is the only route through which President Obama can fulfill his promise before he leaves office, or it may be that, after eight years, the president will have to admit defeat and hand over the prison’s closure to his successor – if that successor is a similar-minded Democrat, and not one of the Republican challengers who all seems to be in favor of keeping Guantánamo open, although that tough talk may, of course, change if they actually get elected and have to face sustained criticism, as happened with President Bush in his second term.

And even if President Obama – or his successor – succeeds in bringing several dozen prisoners to the U.S. mainland, there will then be legal challenges if men continue to be held without charge or trial, because of the long-standing failure of the U.S. to treat men seized in wartime since 9/11 according to the Geneva Conventions, and because, we believe, if they are not put on trial they will have new opportunities to challenge the basis of their detention under the U.S. Constitution, which does not endorse indefinite detention without charge or trial, however much government officials pretend that there is such a thing as an "irreducible minimum" of prisoners who can continue to be held without either being given a trial or formally held until the end of hostilities.

First, though, let us hope that these 22 or 23 men are released within the next two months, and that steps continue to be taken to reduce the population of Guantánamo as much as possible.