Closing Guantánamo, the Democrats and the NDAA

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By Andy Worthington, November 4, 2019

In the long and dispiriting story of the prison at Guantánamo Bay, where, in defiance of its purported values, the U.S. is holding men indefinitely without charge or trial, the role of Congress is not always well understood.

Under George W. Bush, lawmakers were largely compliant with the shameful innovations introduced after the terrorist attacks of September 11, 2001, passing the Authorization for Use of Military Force, the week after the attacks, which allowed the president to pursue anyone that he felt was associated with Al-Qaeda, the Taliban or associated forces, and to imprison them at the Guantánamo prison, which was deliberately established on the U.S. naval base in Cuba to be beyond the reach of the U.S. courts.

From the beginning, the men — and boys — held there were held without rights, and although long legal struggles led to them eventually securing habeas corpus rights, Congress fought back. However, when their habeas rights were eventually gutted of all meaning, the responsibility lay with ideologically malignant appeals court judges rather than Congress.

The gutting of habeas corpus largely returned the prisoners’ fate to the whim of the president — in this case, Barack Obama — but Republican lawmakers imposed a number of restrictions on his ability to release or transfer prisoners, or, indeed, to shut the prison, as he had promised to do on his second day in office.

In successive versions of the annual National Defense Authorization Act (NDAA), Obama was prohibited from moving prisoners to a facility on the U.S. mainland, so that Guantánamo could be closed, and he was also prohibited from bringing any prisoner to the U.S. mainland for any reason — not only for continued imprisonment, but also for release, or to be put on trial, or even for medical treatment that was difficult or impossible to undertake at Guantánamo.

Lawmakers also imposed restrictions on his ability to release or transfer prisoners to other countries, introducing an onerous requirement on the Secretary of Defense to certify that any prisoner release or transfer would be safe, requiring a 30-day review process by lawmakers before any prisoner could be released or transferred, and blocking the release of prisoners to an ever-expanding list of countries regarded as posing a threat to the security of the United States.

This was the situation inherited by Donald Trump, who was largely unaffected by lawmakers’ interference, because he had no intention of closing Guantánamo, or, indeed, of releasing any prisoners. However, when Trump lost control of the House of Representatives in the midterm elections in November 2018, campaigners calling for the release of prisoners and the closure of Guantánamo were, for the first time since Trump’s election two years earlier, able to locate Democrats who might not only be willing to listen to their concerns, but might also act on it; most noticeably, in the House Armed Services Committee, whose incoming Democratic chair was Adam Smith (D-Wash).

Aspirations in the House draft bill

In June, Smith presented his draft bill, which, as Just Security explained, "rescind[ed] in part restrictions on the president’s authority to transfer prisoners from Guantánamo Bay, ban[ned] bringing new detainees to Guantánamo for detention or trial by military commission, require[d] the Attorney General to submit a plan — other than continued law of war detention — for the remaining detainees, and expresse[d] concern about the ability of the United States Government to provide adequate medical care for the aging detainee population."

As Just Security proceeded to explain, Section 1032 of the draft bill, also known as the Chairman’s Mark, "revert[ed] to the Bush-era policy of leaving maximum flexibility for the Commander in Chief by imposing no restrictions on transfers to the United States," although it left intact "the onerous certification process for foreign transfers," and also "retain[ed] a ban on the transfer of detainees to Libya, Somalia, Syria, and Yemen."

In addition, Section 1033, "[r]eflecting the strong consensus among national security leaders that Guantánamo is harmful to U.S. national security interests," prohibited the transfer of "any additional detainees to Guantanamo for law of war detention or military commission proceedings who were not already detained at Guantanamo in law of war detention or military commission proceedings on or after May 2, 2018."

This section also "require[d] the Attorney General, in consultation with the Secretary of Defense, to submit a disposition plan to the defense committees within 60 days of enactment identifying a disposition for each individual still detained at Guantánamo Bay as of the date of enactment other than simply continuing to hold the individuals in continued law of war detention indefinitely."

Section 1034 "contain[ed] a set of findings and a Sense of Congress concerning the ability of the U.S. government to meet its obligation to provide adequate medical care to detainees at Guantánamo given the limited medical facilities at the isolated military base, the logistical challenges of providing care on base, and the increased costs of providing care there—all of which will be exacerbated as the detainee population ages."

The Chairman’s Mark also "expresse[d] concern over the stalled repatriation process for detainees who have been cleared for transfer by either the Periodic Review Board or the Guantánamo Review Task Force" (the two review processes set up under Obama), noting that "no detainees have been transferred since January 20, 2017, despite at least five detainees having previously been approved for transfer." The draft bill "order[ed] an unclassified report to explain why none of the cleared detainees have been transferred and why the process has stalled," also noting that "the lack of transfers is not only problematic from a policy and human rights perspective," but "is also having a negative effect on the functioning of the ongoing periodic review board (PRB) process."

In July, the House approved the draft bill by 220 votes to 197. No Republicans supported it, and one of their complaints, as Roll Call described it, was that it included "a ban on sending new prisoners to the Guantánamo Bay detention center."

However, in a statement, House Majority Leader Steny H. Hoyer (D-MD) congratulated the House on passing a bill that "includes Democratic priorities aimed at hastening the safe closure of the detention facility at Guantánamo Bay."

The Senate bill and the start of the consolidation process

As was to be expected, however, when the Senate version of the bill was passed, at the end of June, its sections dealing with Guantánamo (pp. 435-446) largely extended the bans in previous versions of the NDAA — on using funds to bring prisoners to the U.S. mainland, to "construct or modify" facilities on the U.S. mainland to hold them, to transfer or release prisoners to "certain countries," or to "close or relinquish control" of the Guantánamo naval base.

The Senate draft bill did, however, authorize the temporary transfer of prisoners to the US mainland “for emergency or critical medical treatment,” and also authorized the appointment of a chief medical officer at the naval base.

In September, when Congress reconvened after its five-week summer recess, Defense News reported that, over the summer, "staff members of each chamber’s Armed Services committees were working to resolve noncontroversial issues on the massive, annual defense policy measure, clearing the way for conferees to focus on more problematic policy differences when they return" — including, of course, the differences of opinion regarding Guantánamo.

As Defense News explained, "House Democrats, many of whom have long objected to continuing operations" at Guantánamo, "added language to their draft bill that bans new detainees to the facility. The bill would also remove restrictions on transferring prisoners from the facility to mainland U.S. prisons and requires a plan to deal with ongoing legal questions surrounding the inmates there."

Defense News added that "Republicans in both chambers argue the base remains a critical tool in the fight against terrorism, and inserted those restrictions in recent years to block President Barack Obama from attempting to shut down the detention center," but "[n]ow, with Congress divided, the question becomes which side is more resolute in its stance on the future of the base, and whether the impasse will undermine the entire policy bill."

On September 11, as Defense News reported, there was a meeting of the "big four" leaders of the Armed Services committees — Senate Armed Services Committee Chair Jim Inhofe (R-Okla.), Senate Armed Services Committee ranking member Jack Reed (D-R.I.), House Armed Services Committee Chair Adam Smith, and House Armed Services Committee ranking member Mac Thornberry (R-Texas) — and shortly after, the Grand Forks Herald reported that Sen. Kevin Cramer (R-ND) had been appointed to "a committee aiming to iron out differences in military spending," which partly included differences of opinion about "the future of prisoners" at Guantánamo. As the newspaper explained, "The House version would ban new prisoners [being sent] there and make it easier to transfer them to the U.S. proper. The Senate version would not."

Highlighting Republican intransigence, Sen. Cramer was quoted as saying, "We would resist any language like that, at least I would resist language like that, in the reconciled bill. I think Guantánamo has proven to be important. I don’t like putting terrorists on U.S. soil in our mainland, where they can then demand rights that a U.S. citizen would have to jurisprudence and whatnot."

The House’s watered-down final bill

Around the same time, the House passed its final version of the bill, with, in the sections relating to Guantánamo (pp. 939-943), most of the innovations in the Chairman’s Mark removed, with the exception of Section 1033, with its ban on the use of funds to transfer any additional prisoners — including U.S. citizens — to Guantánamo.

The only other sections to survive the initial markup were, presumably, uncontentious to Senate Republicans — Section 1032 reiterated the long-standing ban on funds to transfer or release prisoners to other countries, and included an expansive list of “enemies”: (1) Libya (2) Somalia (3) Syria (4) Yemen (5) Mexico (6) Guatemala (7) Honduras (8) El Salvador (9) Venezuela (10) Cuba (11) Iran (12) Russia, and (13) North Korea.

Section 1034, meanwhile, was a "Sense of Congress" regarding the provision of medical care, in which the following findings were made:

(1) The individuals detained at United States Naval Station, Guantánamo Bay, Cuba, are aging, and such individuals are increasingly subject to a number of health conditions exacerbated by age and the circumstances of their cases.

(2) Expeditionary medical treatment of individuals detained at United States Naval Station, Guantánamo Bay, Cuba, is logistically challenging and increasingly costly, especially treatment related to complex ailments that may become exacerbated with age.

(3) Medical care at United States Naval Station, Guantánamo Bay, Cuba, is likely to become an increasing challenge for the United States Government.

(4) Medical challenges at United States Naval Station, Guantánamo Bay, Cuba, also cause difficulties affecting the functions and processes of the military commissions and periodic review boards.

As a result, "the sense of Congress" was that:

(1) the United States has an ongoing obligation to provide medical care to individuals detained at United States Naval Station, Guantánamo Bay, Cuba, meeting appropriate standards of care; and

(2) the Secretary of Defense should take into account the standards of care provided at other relevant facilities, including those administered by the Federal Bureau of Prisons, in determining the policies of the Department of Defense regarding the provision of medical care to individuals detained at United States Naval Station, Guantánamo Bay, Cuba.

It may well be that the final, consolidated version of the bill will include a provision for prisoners to receive urgent medical care on the U.S. mainland, although whether or not the House’s demand for no new prisoners to be brought to Guantánamo will survive is impossible to forecast. However, it should be noted that, although Donald Trump has previously expressed his enthusiasm for bringing new prisoners to Guantánamo, there is a widespread understanding, within political bureaucratic circles, that Guantánamo is an unsuitable alternative to federal court for anyone the U.S. wants to prosecute, whether for terrorism or any other crime, and that its only enduring legacy is as a place to contentiously hold prisoners without charge or trial on a seemingly unending basis, a situation that is considered appalling and unacceptable to all but the most fanatically right-wing enthusiasts for arbitrary imprisonment.

The White House’s comments

It’s also worth noting what Russell T. Vought, the Acting Director of the Executive Office of the President, Office of Management and Budget, wrote to Jim Inhofe in a letter about the NDAA on September 4. In specific sections relating to Guantánamo, Vought noted that, although the Trump administration "fully intends to keep open the detention facility at GTMO and to use it for detention operations," it "strongly objects to any restriction on the transfer of Law of War detainees." As Vought explained, "In certain circumstances, restrictions on the President's authority to transfer detainees would violate constitutional separation of powers principles, including the President's authority as Commander in Chief."

I found this complaint genuinely surprising, and can’t help but wonder if the objection is because some ally of the U.S. is seeking the return of one or more of their citizens, or, indeed, if Trump intends to send someone for a trial in another country.

Vought also expressed disappointment about the lack of authorization for funds to build a new prisoner block for the "high-value detainees," to replace the secretive Camp 7, which "is experiencing structural and foundational challenges that, if unaddressed, could pose life and safety risks to guard forces and detainees."

Vought also objected to the provision of medical treatment on the U.S. mainland, arguing that U.S. forces have a history of "quickly deploying specialized personnel and equipment to respond to emergent healthcare issues," at Guantánamo — a claim that is patently not true — and that, moreover, "The provision is potentially counterproductive because it could undermine government efforts to defend against legal challenges to the adequacy of healthcare provided at GTMO and could ultimately result in judicial orders compelling the government to transfer detainees to the United States for treatment."

Vought also objected to the Senate’s "requirement of designating a Chief Medical Officer, outside the chain of command," at Guantánamo, and, as The Hill reported, opposed a prohibition on new transfers to Guantánamo, because it would oblige the Pentagon to "conduct long-term detention of such detainees in-theater or in the continental United States, repatriate them to third countries, or release [them]."

In conclusion, as we wait to see what the final, consolidated version of the bill contains, it’s worth bearing in mind that House Democrats should continue to be approached regarding the more aspirational aspects of their draft bill — the desire to bring prisoners to the U.S. mainland for trial, or for ongoing imprisonment, and the intention to close Guantánamo — with a clear recognition that, notwithstanding the Democrats’ failure to close the prison under Obama, there can, at present, with the next presidential election just a year away, be no progress towards the closure of Guantánamo while Donald Trump remains president, or, in all probability, if any other Republican becomes president, and if Republicans continue to control the Senate.