As $738 Billion Defense Bill Is Passed, Guantánamo Prisoners Are Ignored by Congress

A collaged photo of Donald Trump signing the 2020 National Defense Authorization Act (NDAA) on December 21, 2019, and the prison at Guantánamo Bay on the day it opened, January 11, 2002.

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By Andy Worthington, December 29, 2019

Two months ago, I reviewed the situation at Guantánamo as it relates to Congress, providing a succinct summary of the extent to which Congress has — and hasn’t — been involved in establishing and maintaining the prison since it first opened nearly 18 years ago, and establishing that Congress has largely been complicit in the existence of Guantánamo.

Lawmakers facilitated its creation under George W. Bush, and, when both the Senate and the House were controlled by Republicans under Barack Obama, imposed restrictions on Obama’s efforts to close the prison, in the annual National Defense Authorisation Act (NDAA), that largely remain in place today.

These restrictions — on the countries to which prisoners can be released, on the transfer of any prisoner to the U.S. mainland for any reason, and on spending any money to create a replacement for Guantánamo on the U.S. mainland, or to close the facility in Cuba — largely make no difference under Donald Trump, because Trump has no interest in releasing prisoners, or in closing Guantánamo under any circumstances. As Military.com explained, the requirements regarding Guantánamo in the NDAA "fall in line with Trump's Jan. 2018 executive order to keep Guantánamo open indefinitely."

However, it is dispiriting that all of these restrictions remain in place in the NDAA for 2020 that was signed into law just before Christmas, because it is, frankly, unforgivable for either the president or Congress to behave as though there is any justification for Guantánamo’s continued existence, when that is simply not the case.

Sadly, however, most of the mainstream media reports about the NDAA have failed to adequately address how dispiriting it is that Republicans continue to defend the apparently never-ending existence of Guantánamo, instead being distracted by Trump’s introduction, via the NDAA, of 'Space Force,' "the first new military service in more than 70 years," as the Associated Press explained, and, generally, behaving as though it is somehow normal for any country on earth to have a military bill of $738 billion.

As I explained in my article two months ago, there was hope earlier this year for positive movement on Guantánamo in the 2020 NDAA, because Democrats took control of the House of Representatives in the 2018 midterm elections, and the chair of the House Armed Services Committee, Rep. Adam Smith, had attempted to put Guantánamo back on the table in the House version of the bill.

As Just Security explained in June, Smith’s version of the bill "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."

By September, unfortunately, everything progressive had disappeared from the House Armed Services Committee’s final version of the bill — with the exception of a passage banning the use of funds to transfer any additional prisoners — including U.S. citizens — to Guantánamo.

However, that passage too was removed when the House and Senate versions of the bill were consolidated, as, irritatingly, did a proposal by both the House and the Senate committees to allow seriously ill prisoners to be temporarily brought to the U.S. mainland for urgent medical treatment that is either difficult or impossible to provide at Guantánamo. Not for nothing did Roll Call note, in an article published on December 10, that "the word from a large number of angry Democrats in Congress, their supporters and, more discreetly, from many Republicans" was that the Democrats "got completely rolled" in the NDAA negotiations.

The only additional passage to add to the bans mentioned above that survived into the final version was a requirement for there to be a Chief Medical Officer appointed to oversee the health of the Guantánamo prisoners, who "shall be an officer of the Armed Forces who holds a grade not below the grade of colonel, or captain in the Navy," and who "shall be assigned [by] and report to the Assistant Secretary of Defense for Health Affairs."

This, presumably, was a small measure to try and guarantee that the increasing incidents of serious illness amongst the inevitably aging population of Guantánamo will be properly monitored, but it is a tiny gesture of responsibility in what is otherwise a bleak continuation of Guantánamo as a facility that is sealed shut, with no one leaving under any circumstances, and with Congress content for that to be the case, even though only nine of the 40 men still held are going through or have gone through any kind of trial process, and even though five of the 40 were unanimously approved for release by high-level U.S. government review processes under President Obama, but were not released before he left office.

As for the 26 others, although they are supposed to have their cases reviewed regularly by Periodic Review Boards (a parole-type process established under Obama), they have all been boycotting that process, as no one has been approved for release since Trump took office, and the prisoners have correctly concluded that it is a sham.

Back in June, when a Guantánamo case was turned down by the Supreme Court (as has happened without exception since the Court last intervened on behalf of the prisoners in 2008’s Boumediene v. Bush, granting the prisoners constitutionally guaranteed habeas corpus rights), Justice Stephen Breyer attached a statement expressing concern that the Court’s ruling in 2004’s Hamdi v. Rumsfeld, allowing detention for the "duration of the relevant conflict," had, because of the long passage of time, become a ruling that "could amount to 'perpetual detention.'"

It remains to be seen whether Justice Breyer’s concerns are shared by his fellow Justices, but it is at least a hint on the part of the Supreme Court that there is something wrong with indefinite imprisonment without charge or trial, even though both the president and Congress seem to be entirely happy with holding men forever without the kind of due process that the rest of us take for granted.

As we approach 2020 — an election year — we can only hope that, this time next year, we will have a new president and a new configuration of Congress, and that both understand that "business as usual" at Guantánamo is completely unacceptable, and that rigorous steps must be taken to lead to the prison’s closure once and for all.