WASHINGTON — A year since President Barack Obama renewed his pledge to close the detention center at the Guantanamo Bay Naval Base in Cuba, a formal review system is functioning and detainee transfers have picked up. But the politics around any ultimate closure of the prison complex have only become more complex.
Currently, Washington is seeing two prominent yet opposing policy pushes on the issue. On the one hand, the Obama administration last week laid out a detailed legal analysis aimed at assuaging concerns about any eventual transfer of detainees from Guantanamo Bay to the United States. On the other hand, on Wednesday and Thursday the House of Representatives will discuss a new legislative proposal that would strengthen restrictions on any such transfers, while also barring certain third-country resettlement.
The legislation, a major military appropriations bill called the National Defense Authorization Act for Fiscal Year 2015, could also release funding for a new $69 million detention facility at Guantanamo Bay. The prison would be meant to house a handful of the “highest value” detainees well beyond Obama’s tenure.
“Once again, President Obama has been unable to keep his promises when it comes to Guantanamo Bay,” Cortney Busch, a Guantanamo caseworker for Reprieve U.S., a legal aid and advocacy group that represents 15 Guantanamo detainees, told MintPress News.
“Furthermore, the proposed 2015 [National Defense Authorization Act] would further restrict transfers from Guantanamo, making the fate of the legal black hole less clear than Obama had declared this time last year.”
As of Wednesday, more than 140 detainees remained at Guantanamo Bay, according to the American Civil Liberties Union, the last of nearly 800 that have been held at the detention facility since it opened in 2002. Nearly half of the 140 still there have already been cleared for release by the U.S. government, but remain incarcerated due to various administrative, legal and logistical obstacles — some purposeful and some not.
A substantial number of those cleared are from Yemen. Yet because of instability in that country, the administration remains in a quandary as to what to do with these men, partly because of a standoff between the White House and Congress. Although Obama stated in a speech last May that long-pending transfers to Yemen could go through, no such action has been taken in the year since that policy switch. Further, the new National Defense Authorization Act could formally outlaw such a move.
“While we have seen an increase in releases — a welcome departure from previous years — the large Yemeni population remains in Guantanamo without any hope of going home or resettlement,” Reprieve’s Busch said.
“Guantanamo North”
Meanwhile, detainees at Guantanamo remain outside of the U.S. legal system — as well as that of any other country — continuing to be classified as prisoners of war, even as the U.S. military is engaged in what could be a complete withdrawal from Afghanistan by the end of this year.
In March, the U.N. Human Rights Committee reviewed the United States’ compliance with obligations under the International Covenant on Civil and Political Rights. The committee’s final observations were highly critical, focused extensively on the decade-plus period over which many detainees at Guantanamo have been held without trial or charge.
“[T]he Committee regrets that no timeline for closure of the facility has been provided,” the committee noted in its concluding observations. “The Committee is also concerned that detainees held in Guantanamo Bay and in military facilities in Afghanistan are not dealt with within the ordinary criminal justice system.”
In last year’s National Defense Authorization Act, the U.S. Congress ordered the Justice Department to produce a report on the potential implications of bringing Guantanamo detainees into the U.S. legal system, in what appeared to be a substantive step toward the eventual closure of the facility. Lawyers with the Justice Department were to focus particularly on whether detainees in the U.S. would be guaranteed any rights under the Constitution or whether they may be able to be released — for example, following an asylum request.
Due in part to these fears, there is currently a legal ban on transferring Guantanamo detainees to the U.S. for detention or trial. However, the Justice Department report, released last week, undercuts many of those concerns.
“Historically, the courts have treated detainees held under the laws of war who are brought to the United States as outside the reach of immigration laws,” the report stated, noting that Congress can also specifically state whether or not immigration law would apply to Guantanamo detainees.
“We are not aware of any case law, statute, or constitutional provision that would require the United States to grant any Guantanamo detainee the right to remain permanently in the United States,” the Justice Department analysts conclude, “and Congress could, moreover, enact legislation providing that no such statutory right exists.”
According to a new report from Amnesty International, released Wednesday, the Obama administration’s plan for closing Guantanamo includes a proposal to retrofit a prison in Illinois to house detainees awaiting trial or release, or those with whom the government doesn’t know what to do. “The establishment of ‘Guantanamo North’ is still on the cards, this [National Defense Authorization Act] … report would seem to be saying, if the administration has its way,” the report notes.
Yet rights advocates have generally lauded the Justice Department’s report as an official crystallization of what they’ve long been pointing out.
“This is something we and others have been saying for a while: that there is no risk of detainees being released into the United States,” Daphne Eviatar, a senior counsel for national security at Human Rights First, an advocacy group here, told MintPress.
“It’s certainly nice to see an official report telling Congress that this is not a new interpretation of law. This should now end the debate on whether there are risks associated with transferring detainees to the U.S.”
Political football
Eviatar notes that the report’s timing should be significant, coming just as lawmakers take up debate on the National Defense Authorization Act for next year. “This should bolster support,” she said. “But of course, because Guantanamo is such a political football, it’s hard to know how it will turn out.”
Indeed, immediately following the report’s release, key Republicans were already criticizing its findings. Oklahoma Sen. James Inhofe, the lead Republican on the Senate Armed Services Committee, panned the report as “giving cover to President Obama so that he can continue what he is already actively working towards, which is bringing terrorists onto U.S. soil.”
Inhofe’s warning was echoed by the head of the House Armed Services Committee, Rep. Buck McKeon of California, who said he “remained concerned we would wind up with terrorists released and taking up residence in the United States.”
McKeon is a particularly powerful voice on the issue. As the primary shepherd and lead sponsor of the annual National Defense Authorization Act, he has authorized the inclusion of two provisions in this year’s proposal that have Guantanamo critics particularly frustrated. Sections 1032 and 1033 of Rep. McKeon’s proposal would outlaw the transfer of Guantanamo detainees to the U.S. and would further bar the use of any federal funding for the construction or refurbishing of any facility to house detainees in the U.S.
The White House threatened to veto the entire National Defense Authorization Act on Tuesday, in part due to its “strong” objections over these two sections.
“Operating the detention facility at Guantanamo weakens our national security by draining resources, damaging our relationships with key allies and partners and emboldening violent extremists,” the White House said in a statement.
“These provisions 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 Guantanamo detainees based on the facts and circumstances of each case and our national security interests.”
Other amendment proposals to the act would try to reverse course, speeding up the Guantanamo closure process. Rep. Adam Smith of Washington state is the top Democrat on the House Armed Services Committee, and he and others formally put forward aprovision on Wednesday that would lift any ban on transfers from the prison complex to the U.S. It would also cut off funding for Guantanamo by 2016. A similar proposal failed last year, when just two Republicans supported it.
This year’s House National Defense Authorization Act could go in the opposite direction, attempting to apportion some $69 million for a new prison at the Guantanamo Bay Naval Base to house “high-value detainee[s].” While the Pentagon had indeed requested such funding in previous years — albeit at lower levels — the military leadership has since dropped the idea after seeing pushback from the Obama administration.
“Supporters of these proposals highlight the allegedly intractable problem of some 45 detainees at Guantanamo, and potentially more, whom the Obama administration has insisted since 2009 cannot be convicted on criminal charges, yet are nonetheless too dangerous to release,” Human Rights First’s Eviatar wrote in a new blog post.
“The effect is to create a group of people secretly deemed by the government to be detainable beyond the reach of the law. So should Congress create a new law to allow that?”
Anemic progress
All National Defense Authorization Act amendments to the House bill are slated to be voted upon on Wednesday and Thursday. Friday is the one-year anniversary of Obama’s renewed pledge to close down Guantanamo, a goal he reiterated early this year. Friday will see rallies across the country by activists frustrated with what they see as the administration’s anemic progress over the past year.
Two special envoys for the State and Defense departments have been formally appointed to spearhead the shuttering process over the past 12 months, and a review system has begun systematically going through each detainee’s case. In addition, more countries have agreed to resettle cleared detainees, most recently when the Uruguayan president approved the potential transfer of six Guantanamo prisoners.
Yet just a dozen detainees have actually been transferred out of Guantanamo over the past year. During a visit to Washington last week, Uruguayan President Jose Mujica Cordano referenced this slow pace, even as he agreed to take in some detainees. “It can’t be too long,” Cordano warned the media. “I only have a few months of government left.”
Activists across the country plan to highlight such concerns and add their own voices to the policy debate on Friday.
“Guantanamo represents a moral failing for our nation. We tortured people there, held them for years without charge or trial, and are now keeping many of them there even years after they were cleared to leave,” Matt Hawthorne, policy director at the National Religious Campaign Against Torture, an advocacy group organizing Friday’s events, told MintPress.
“Congress should support closing Guantanamo and ending indefinite detention by removing restrictions on transfers. Instead, Congress is going to vote on banning all transfers to Yemen … even after our own government says that it no longer has need to hold them.”