Why Obama doesn’t need Congress to start to make good on his promise.
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."
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.
Of the other 80 detainees at Guantanamo, the administration has designated 46 for indefinite detention. They were put in this category because an interagency task force deemed them too dangerous to release and yet the administration either did not have sufficient admissible evidence against them to prosecute or concluded that their acts did not amount to a chargeable crime.
Obama signed an executive order on March 7, 2011, providing these detainees the ability to challenge this designation. But the panel before which they would appear, called a Periodic Review Board (PRB), has yet to even be formed -- even though an executive order mandated that it begin reviews within the year. And while 31 prisoners have been slated for prosecution, only six of those -- including the five defendants accused in the attacks of September 11, 2001, face any formal charges. The remaining three men at Guantanamo are serving sentences following convictions in military commission proceedings.
The administration should either prosecute these 80 detainees against whom they have any credible evidence -- and in courts that comport with fair trial standards -- or release them. Though starting the PRB process would provide detainees in the indefinite detention category with at least some ability to challenge their designation, if these individuals cannot be prosecuted, they should be released.
Even though they have been revised three times since first formed in 2005, and improved under Obama's presidency, it's clear that military commissions at Guantanamo do not comport with fair trial standards. Among other things, they lack judicial independence, allow the admission of certain coerced testimony, and fail to protect privileged attorney-client communications. In February, defense attorneys in one of the only two cases currently being prosecuted at Guantanamo discovered listening devices disguised as smoke detectors in attorney-client meeting rooms. Additionally, proceedings were halted because a courtroom feed to the media and observers that supposedly only the judge was able to control was cut off by an unnamed U.S. agency. Then in mid-April, hearings were further delayed by two months because an enormous number of prosecution and defense files disappeared from the server that both legal teams are required to use to process the highly classified documents in the case. Furthermore, it's not entirely clear why even the court's supporters would be so in favor of continuing the status quo -- the only two military commission verdicts obtained by full trials were recently overturned on appeal. In those cases, the appellate court found that the charges of conspiracy and material support for terrorism, for which the defendants were accused, were not war crimes and hence not within the jurisdiction of the commissions.
Current congressional restrictions prohibit the use of funds to transfer detainees to the United States, so Obama is correct when he said that he'll need to re-engage with Congress to lift these unreasonable restrictions. While federal courts are not perfect, they provide much greater procedural protections than the military commissions; and, with 200 years of jurisprudence behind them, their verdicts are far more certain to withstand appeal.
Obama's pledge to "get back at it" on closing Guantanamo is welcome, but he can't get away with words alone, or with shifting the blame to Congress. There are steps he can take now to begin ending the unlawful practice of indefinite detention without trial and to transfer those prisoners who are already slated to be sent home. As the president himself said, Guantanamo "hurts us in terms of our international standing" and "lessens cooperation with our allies on counterterrorism efforts." If these are words he truly believes, then he should exercise the authority he has to transfer some detainees now, and begin working with Congress to address the rest.
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