After the NDAA, What to Do about Guantanamo

In a newly released 2013 memo, then-Secretary of State Hillary Clinton wrote to President Obama to voice her dismay at the lack of progress on closing the prison at Guantanamo Bay. National security leaders, including members of the Bush Administration, support closing Gitmo, but so far, the Obama Administration has squandered its many chances to make that happen.

In her memo, Secretary Clinton urged the president to negotiate with Congress to ease the restrictions on transferring detainees out of the prison, and to convince supporters of military commission trials that U.S. federal courts are the right venue for trying terrorism suspects. Clearly, the administration did not pursue these strategies with the zeal that Secretary Clinton recommended. Last week, President Obama yet again acceded to new Congressional restrictions in the 2016 National Defense Authorization Act (NDAA).

This year’s NDAA contains new and more restrictive rules for transferring prisoners out of Gitmo to other countries for resettlement, and continues the ban on moving prisoners to the United States, even for trial or emergency medical treatment. The president threatened to veto the NDAA partly over these provisions, but ultimately caved. He noted in his signing statement that the restrictions are “unwarranted and counterproductive,” but he said virtually the same thing in 20112013, and 2014 after backing down from new restrictions each year.

So how can the Obama Administration move forward on closing Guantanamo now? First, President Obama can show that he is serious about working with Congress by directing his administration to release its long-awaited plan for closing the prison. The release of this plan, requested by Senator John McCain, has been postponed again and again, as opponents gather strength and preemptively protest whatever they think the plan will recommend.

Senator McCain hoped to have the plan during NDAA negotiations to help broker a deal with Congressional opponents, but the administration missed that deadline and still hasn’t delivered. Delaying it more can only hurt the effort to close Gitmo. The Obama Administration should release it to Congress and the public as soon as possible so that negotiations can begin.

The Obama Administration should also speed up transfers of cleared detainees. Forty-eight of the remaining 107 detainees have been cleared for transfer by all relevant U.S. government agencies. All of these men have been held without charge or trial for more than 12 years. Some were cleared by both the Bush and Obama Administrations.

Moving these men out of Guantanamo would reduce the prison’s population by nearly half, easing any future negotiations over what to do with the remaining detainees. The administration needs to redouble its efforts to negotiate transfer deals with the detainees’ home countries or third countries, and ensure that the Department of Defense—which has put up roadblocks before—helps instead of hinders transfers.

Additionally, the Periodic Review Board (PRB) hearings, meant to assess whether detainees slated for indefinite detention are a continued threat to the United States or are eligible for release, barely inch forward. The PRBs, which should have completed all initial hearings by March 2012, did not even start until 2013. It has only held 22 hearings for 19 detainees. Only two more hearings are scheduled, both in December. At this rate, the initial hearings won’t be done until at least 2020. The administration must ensure that the PRB hearings continue at an accelerated rate and that all 48 eligible detainees receive hearings in a timely manner.

The Obama Administration should also halt the disastrous military commission trials at Guantanamo. The cases in pre-trial hearings—the 9/11 case and the USS Cole case—are trainwrecks with no start date in sight. The military commissions have only managed to hear eight cases to completion. Four of those verdicts have been overturned, and the commission’s rules have been revised twice. U.S. federal courts are equipped to handle terrorism cases, and regularly do so without incident.

With barely over a year left to make good on his promise to close Guantanamo, there are concrete steps that President Obama and his administration can take to make it happen. The president needs to be decisive and make clear to his administration, Congress, and the American people that closing the prison is a necessity.

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Published on December 1, 2015

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