President Barack Obama finally broke his long silence on Tuesday on the need to close Guantanamo. Echoing comments he made four years ago -- when, on his second day in office he promised to close the facility within a year -- he said "Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient.... It needs to be closed."
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Welcome words, but it's unlikely they will brighten the day of the 100 men currently on hunger strike at the facility. Twenty-one are currently being tube-fed, a procedure that entails being put in a restraint chair while a lubricated plastic tube is inserted down a detainee's nose and into his stomach. (Detainees are then held in the chair for approximately two hours to make sure the liquid supplement fed into the tube is digested.) Obama's words might carry more resonance with those who have been lobbying for closure of the facility for the better part of a decade, though perhaps more so if he didn't seem so keen to apportion blame elsewhere.
In his remarks, made in response to questions at the White House press briefing, Obama pointed the finger at Congress saying it had been "determined" not to let him close the facility, and that he promised to "re-engage with Congress" on the issue. While it's true that Congress has certainly placed obstacles in the way of closing the facility, such as restricting the use of funds to transfer detainees to the United States for trial, there are still a number of steps the Obama administration could have taken -- and can still take now -- to begin closing the facility and ending indefinite detention without trial.
For one, it can begin to transfer the 86 of the 166 detainees at Guantanamo already slated for release to their home or third countries. In 2011 and again in 2012, Congress enacted some restrictions on the transfer of detainees from the facility, but those restrictions are not insurmountable. They require receiving countries to take certain steps to ensure that those being transferred do not engage in terrorist activity and that the secretary of defense certify such steps have taken place. If, however, the secretary of defense cannot, for one reason or another, certify those steps have been taken, he can waive the certification requirement in lieu of "alternative actions" -- a term which has no clear legal or procedural definition. The only guidelines are that they "substantially mitigate" the risk that the detainee being transferred may engage in terrorism. Clearly then, the administration's ability to transfer detainees out of Guantanamo exists now, even with congressional restrictions. And with Obama again reiterating that keeping Guantanamo open harms U.S. security, the certification -- and even more so the waiver -- process seems to offer a clear path forward to emptying the facility of more than half its prisoners, if not closing it down.
Yes, there is some risk that detainees released from Guantanamo may engage in terrorism. The government has stated that some of the detainees released from Guantanamo have already been involved in terrorism, though the number is disputed and the government refuses to publicly release the information on which it is basing those claims. The director of national intelligence claims (though these claims have been discredited) that about 16 percent of the approximately 600 people released from the facility over the past 12 years are confirmed, and 11 percent are suspected, of having engaged in terrorism after their release. Independent, credible analyses of those figures by researchers at the New America Foundation indicate the number is more like 6 percent, or 1 in 17. Even if the Pentagon figures were true, clearly the vast majority of people released from Guantanamo have not engaged in terrorism; in fact, it's well below the estimated 60 percent U.S. recidivism rate for criminal convictions overall. There are many people in the world who may commit crimes in the future, but the United States has not locked them up indefinitely. The bottom line is that the administration needs to assume some risk that those released may become involved in terrorism -- even though that risk is objectively low. But even on a purely moral level, the fear that someone may engage in terrorist or criminal behavior in the future is not a legitimate basis for prolonged indefinite detention. Furthermore, the decision about whether to release a detainee should be made on an individual basis, not based on the behavior of other detainees.
The administration could also lift its self-imposed moratorium on returning Guantanamo detainees to Yemen; some 56 of the 86 detainees slated for release are from that country. The president imposed a moratorium on returns to Yemen after Umar Farouk Abdulmutallab, a Nigerian trained in Yemen, tried to blow up a Detroit-bound plane with explosives hidden in his underwear on Christmas Day 2009. Abdulmutallab was convicted in federal court and is now serving a life sentence. But the Yemeni government has requested the return of their citizens from Guantanamo and promised to build a rehabilitation center there to facilitate the process. Senator Dianne Feinstein (D-CA), an initial supporter of the moratorium, recently asked Obama's national security director to reevaluate the hold and consider whether, with appropriate assistance, Yemeni detainees can begin being transferred home.
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