Congress appears ready to make it a little easier to allow the U.S. to send Guantanamo Bay detainees back to their home countries in a move that inches President Barack Obama closer to his goal of shuttering the facility altogether.
The House last week overwhelmingly approved a defense authorization bill that would loosen restrictions on transferring detainees from Guantanamo to countries other than the United States by allowing the U.S. more leeway in negotiating potential transfers with other nations.
The Senate is set to vote on the measure this week.
Closing the detention facility in Cuba is one of the marquee promises Obama has not yet been able to keep. He began his presidency by issuing an executive order that would have closed the Guantanamo prison where, 12 years after the Sept. 11 attacks on the United States, 160 terrorist suspects are still held.
(On Sunday the Defense Department announced that it had transferred two detainees held at Guantanamo to Saudi Arabia. The Pentagon said it had worked with the Saudi government “to ensure these transfers took place with appropriate security and humane treatment assurances.”)
In a compromise designed by House Armed Services Committee chairman Rep. Howard “Buck” McKeon, R- Calif., his Senate counterpart Sen. Carl Levin, D- Mich., and their ranking minority members, the pro-Guantanamo Republicans and the anti-Guantanamo Democrat each got some of what they wanted.
By easing restrictions on detainee transfers to other countries, the bill moves a step toward someday eventually closing the facility, even though there’s no guarantee that would happen before the end of Obama’s presidency, or at any time. And as long as Republicans hold the majority in the House, it seems certain that they’d block any move to allow Guantanamo detainees to be brought to the United States.
The defense bill:
- Bans the transfer of any Guantanamo detainee to the United States through the end of next year.
- Bans building or modifying any facilities in the United States to house detainees transferred from Guantanamo, again through the end of 2014.
- Blocks a provision that would have given Secretary of Defense Chuck Hagel the power to temporarily transfer detainees to the United States for emergency medical treatment.
But in a victory for the Democrats, the bill allows Hagel to transfer detainees to other countries if a review board finds that a detainee is no longer a threat to U.S. national security. Hagel must also consider factors such as the presence of foreign terrorist groups in the country to which the detainee is being sent.
The bill rejects the House-passed ban on the transfer of Guantanamo detainees to Yemen, where al Qaeda is an active force in the Arabian Peninsula.
The bill also rejects the attempt by House Republicans to spend more money on beefing up the Guantanamo facility to better suit it to hold detainees for years.
Levin estimated that under the terms of the bill, half of the 162 detainees could be transferred to their native countries and half of them would remain in Guantanamo because of the ban on transferring them to the United States.
Ben Wittes, a senior fellow at The Brookings Institution and editor-in-chief of the Lawfare blog, praised the bill for “restoring the administration’s flexibility to transfer detainees it wishes to get rid of. That’s a very good thing—whatever one thinks of Guantanamo.”
He wrote that under current law the requirements for transfers to other countries involved “onerous certifications by the Secretary of Defense that almost never could be signed.”
If the bill becomes law, he said, “The administration will be in a position to move detainees out of Guantanamo as long as it is willing to be politically accountable for the problems they create and as long as they don’t bring them to the United States. That’s a big change—and a good one.”
C. Dixon Osburn, the director of the Law and Security Program at Human Rights First, an advocacy group which supports closing Guantanamo, said the bill would “no longer force the administration to go through a really cumbersome certification requirement,” but would still require Hagel to take into account the risks of transferring detainees to another country.
Osburn said 82 of the men now held at Guantanamo have already been approved for transfer. The bill “will give the administration the ability to start moving on the transfers of some or all of those people.”
He said another 71 of the detainees are still going through a review process to see whether they are safe enough to release. The bill “firmly places the ball in the administration’s court” and officials will now “have the authority that they said they need” to negotiate the transfer of detainees to Yemen, Libya, Morocco, and other countries.
Easier transfers to other countries will be a defeat for Republicans such as Senate Armed Services Committee ranking member Sen. Jim Inhofe of Oklahoma and Sen. Kelly Ayotte of New Hampshire, one of the leaders of the effort to keep Guantanamo ready to house new detainees if they’re caught.
In last month’s Senate debate on Guantanamo, Ayotte asked, “What do we do with future captures, such as (al-Qaida leader Ayman) Zawahiri? How do we ensure we can gather information (from them)? ….If we can stop a terrorist attack by interrogating someone—the price we can save for America, we cannot put a number on that.”
And Inhofe denounced “this obsession the president seems to have to bring these terrorists into the United States.”
The Oklahoma Republican voiced his concern that somehow Obama will succeed in closing the facility: “I have a great fear, and that is that once we get a different administration here that realizes the value of Guantanamo Bay, it will be too late to go back and get it again. That is the reason we have been holding on to it with white knuckles.”
But passage of the defense authorization bill seems to indicate that the tide is slowly turning against Inhofe and others who see Guantanamo as still vitally important.
Osburn said that there are 48 detainees whom the administration has neither charged with a crime nor cleared for transfer to another country. Some of them could eventually be sent to Afghanistan and Yemen after negotiations with the governments of these countries.
“Then you look at a smaller and smaller number of the most intractable group,” he said. “I think it’s possible to get the number down to zero -- but it’s going to be a process of whittling away.”