The Push to Close Guantánamo: Eric Holder Responds to Calls for Action by Sen. Carl Levin, Harold Koh and 200,000 Concerned Citizens

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By Andy Worthington, May 15 2013

As the prison-wide hunger strike continues at Guantánamo, one of the key demands of campaigners -- including myself and Tom Wilner, here at "Close Guantánamo" -- has been for President Obama to appoint an official to oversee the closure of the prison, to replace Daniel Fried, the State Department official who oversaw the release of dozens of prisoners in 2009 and 2010, before Congress -- and the President himself -- raised obstacles to the release of prisoners.

Fried was reassigned in January this year, and no one was appointed to take his place, a message that was easily interpreted as a sign that President Obama and his administration had decided that the closure of Guantánamo was no longer a priority.

Today, however, Attorney General Eric Holder told a news conference that, as Reuters reported it, the government "intends to revive a vacant position coordinating policy" for the prison at Guantánamo Bay. "We're in the process of working on that now. We're looking at candidates," Holder told a news conference.

However, as Reuters added, "he did not say who the candidates were to fill the position of coordinating Guantánamo, or whether the person eventually appointed would work at the State Department, the White House or elsewhere." Nevertheless, he stated that the administration will make "a renewed effort to close Guantánamo," and, as Reuters noted, he also cited "the prison's high cost and the impact on U.S. relations with other nations."

This is excellent news, although, as with President Obama's fine words two weeks ago, it must be followed up with action. It is, however, a vindication for the more than 200,000 people who, in the last two weeks, have signed a petition on Change.org, launched by Col. Morris Davis, the former chief prosecutor of the military commissions at Guantánamo, calling for the appointment of a new official to drive the closure of the prison.

In addition, it is clearly also a response to high-level criticism from friends of the administration.

Sen. Carl Levin's letter to the White House

Last Thursday, for example, Sen. Carl Levin (D-Mich.), the Chairman of the Senate Armed Services Committee, sent a letter to the Obama administration in which he "urged the White House to appoint an official to spearhead an interagency effort to oversee the process of relocating detainees at Guantánamo Bay who have been cleared for transfer." His press release also stated, "Levin fought for a national security waiver that provides for the transfer of detainees in appropriate cases. More than 80 detainees who have been cleared for transfer are still awaiting departure from Guantánamo. Expediting this process is critical to advancing the goal of closing GITMO, as the president has called for."

The text of Levin’s letter to the White House -- to Kathryn Ruemmler, Assistant to the President and Counsel to the President -- was as follows:

Dear Ms. Ruemmler:

At a press conference last week, President Obama reaffirmed his commitment to close the detention facility at Guantánamo (GITMO) because, as he pointed out, it is expensive, inefficient, damaging to the United States’ international standing, reduces the cooperation of our allies in countering terrorism, and serves as a recruiting tool for extremists. The President said he had asked his staff to review all options for addressing the GITMO issue and expressed the desire to re-engage with Congress on this.

I recognize that Congress has made the process of relocating GITMO detainees to third countries more difficult by imposing certification requirements on such transfers. However, more than a year ago, I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.

I urge the President to appoint an official inside the White House to spearhead an interagency effort to determine which of the more than eighty detainees who have already been cleared for transfer by the Guantánamo Detainee Review Task Force meet the certification (and waiver) requirements, and to actively work for their transfer. High level leadership on detainee transfers is critical to advancing the goal of closing GITMO.

Thank you for your assistance in this matter.

Sincerely,

Carl Levin
Chairman

Harold Koh's speech at the Oxford Union

In addition, Harold Koh, former Legal Advisor to the State Department, delivered a speech at the Oxford Union on May 7, in which he also called for the appointment of a senior official to oversee the closure of the prison.

Koh stated, “What the President’s team should recognize is that he does not need a new policy to close Guantánamo. He just needs to put the full weight of his office behind the sensible policy that he first announced in January 2009, reiterated at the National Archives in 2010, and reaffirmed in March 2011 … First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantánamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantánamo population and close the camp.”

Koh proceeded to explain that this new Special Envoy "should work on the diplomatic steps needed to transfer either individually or en bloc some 86 detainees who were identified three years ago as eligible for repatriation to their home countries or resettlement elsewhere by an administration task force that exhaustively reviewed each prisoner’s file."

He added, "The President should send the Envoy to Yemen to negotiate the block transfer, to a local rehabilitation facility, of those Yemeni detainees who were cleared for transfer, before those transfers were put on hold because of instability in that country" -- echoing Sen. Dianne Feinstein's recent call for renewed action to free the 86, who were cleared for release over three years ago by President Obama's own inter-agency task force -- and to resume transfers to Yemen of the 56 cleared prisoners who are Yemeni, and who, since President Obama imposed a ban on their release in the wake of the failed Christmas 2009 bomb plot, have been imprisoned on the basis of their nationality.

Providing further guidance, Koh stated, "Starting in 2010, Congress has used authorization bills to impose a series of counterproductive restrictions on the transfer of Guantánamo prisoners. But some of those restrictions are subject to waiver requirements and all must be construed in light of the President’s authority as commander-in- chief to regulate the movement of law-of-war detainees, as diplomat-in-chief to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where. If Congress insists on passing such onerous and arguably unconstitutional conditions in the next National Defense Authorization Act, the President should call its bluff and forthrightly veto that legislation."

Koh's speech is also interesting for his thoughts on prosecutions and on the need for "periodic reviews" to be initiated for the 46 men who I recently described as the "forgotten prisoners" -- those who, as Koh put it, the task force "concluded should remain held under rules of war that allow detention without charge for the duration of hostilities."

I urge those who are interested in the closure of Guantánamo to read Koh's full speech, but for now the focus must be on finding an official to lead the closure of the prison, and not to allow the administration to take its eye off the ball, and on the need to release cleared prisoners as soon as possible.

As Tom Wilner, the co-founder of "Close Guantánamo," who represented the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008, stated in response to the news, "What is happening at Guantanamo today is both a terrible human tragedy and a continuing outrage to our values as Americans. These few Arab men, many of whom have long been cleared of any wrongdoing, have been deprived of their liberty and of any opportunity to see their families for more than 11 years. They are stranded at an island prison and largely ignored because they have no U.S. constituency to speak on their behalf."

He added, "That is no longer tolerable. The president has the authority under existing law to transfer these men from Guantánamo and to close this prison. He must exercise that authority and, as the critical first step, he must appoint someone in the White House with the responsibility for getting the job done."

We look forward to hearing that someone has been appointed to this critically important position, and encourage you to maintain the pressure on the administration by signing Col. Davis's petition.

Note: For other perspectives on the need to appoint a senior official to oversee the closure of Guantánamo and for President Obama to act urgently to secure the release of cleared prisoners, please watch “Guantánamo: From Crisis to Solution,” a panel discussion put together by the Constitution Project, the National Religious Campaign Against Torture and the New America Foundation, which took place in Washington D.C. on May 10, 2013, and was broadcast by C-SPAN.

The panel discussion featured Rep. Jim Moran (D-VA), a longtime advocate for the closure of the prison, General David R. Irvine, USA (Ret.), a former intelligence officer and expert in prisoner-of-war interrogation with the Sixth Army Intelligence School, and a member of the Constitution Project’s Task Force on Detainee Treatment; Colonel Lawrence B. Wilkerson, USA (Ret.), former Chief of Staff to Secretary of State Colin Powell, and a member of the Constitution Project’s Liberty and Security Committee; Dr. George Hunsinger, Hazel Thompson McCord Professor of Systematic Theology at Princeton Theological Seminary and a founder of The National Religious Campaign Against Torture; Pardiss Kebriaei, senior staff attorney at the Center for Constitutional Rights; and Morris Davis, USA (Ret.), a former Air Force Colonel and the former Chief Prosecutor at the Office of Military Commissions at Guantánamo Bay. TCP Board member Kristine Huskey moderated the panel.

As the Constitution Project described it, Rep. Jim Moran "hosted a standing only briefing on Capitol Hill for Members of Congress and their staff," in which the panel of experts "examined the ongoing hunger strike at Guantánamo Bay -- which as of May 10 involved 100 of the 166 remaining detainees, 27 of whom were being force fed -- and explored steps that can be taken to mitigate the current crisis, in particular by reducing the detainee population. All panelists agreed that President Obama must immediately begin transferring cleared detainees by exercising authority he has under current law."