The Unprecedented Congressional Restrictions on Gitmo Transfers

On Monday retired U.S. Supreme Court Justice John Paul Stevens called for the Guantanamo Bay detention facility to be “put to an end … as promptly as possible.” Noting the astounding costs of the facility, which currently run to more than $3 million per detainee per year, Stevens called Gitmo a “wasteful extravagance” and called on the government to pay reparations to the 57 detainees who have been cleared for transfer by six national security and intelligence agencies—some for more than six years—yet remain imprisoned at the facility.

Stevens also blasted the congressionally imposed restrictions that block transfers of Gitmo detainees to the United States for any reason—including for trial in federal court, where over 500 people have been convicted on terrorism-related charges—and that make transfers overseas more difficult. As Stevens said, these “onerous provisions have hindered the President’s ability to close Guantanamo, make no sense, and have no precedent in our history.”

He’s right: the restrictions are indeed unprecedented. In a recent law review article, “How Wartime Detention Ends,” Deborah Pearlstein found that “in none of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded … has Congress imposed any such restriction on the exchange, transfer, or release of prisoners, during or after the period of armed conflict.”

Rather, the disposition of U.S. held prisoners has always been carried out by the executive branch, with Congress staying out of it. Prisoners were repatriated, transferred to third countries, granted asylum in the United States, or exchanged for U.S. prisoners. As Pearlstein points out, the recent Gitmo prisoner exchange for U.S. Army Sergeant Bowe Bergdahl is actually representative of “prevailing U.S. custom.”

Furthermore, the United States has returned prisoners to unstable counties, like post-World War II Germany, and to both state and non-state enemies, such as Vietcong prisoners during the Vietnam War. In releasing these prisoners, the United States took “a calculated risk that any short term tactical burden we might bear was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with the law.”

This sentiment was recently echoed by Professor Jennifer Daskal, who, in discussing the need to responsibly close Gitmo, noted that “we can’t, for better or worse, both maintain our value system as a liberal democracy that abides by the rule of law and also demand a risk-free world. If we did, we’d never release anyone from prison.”

Next week, Congress will once again debate these unprecedented restrictions. House Armed Services Committee Chairman Mac Thornberry has proposed even more burdensome transfer restrictions – reinstating old certification requirements that made it virtually impossible to transfer anyone out of the facility and prohibiting transfers to areas the IRS defines as “combat zones” to give troops tax breaks. This would rule out nearly the entire Middle East, as well as countries like Albania and Bosnia-Herzegovina, which have successfully resettled Guantanamo detainees.

Clearly, Justice Stevens thinks we are better than this. Our history shows we can be. It’s time for Congress to act responsibly and remove the transfer restrictions. And if Congress refuses, it’s time for the president to evoke our history and “prevailing U.S. custom” and then veto them, transfer the 57 cleared detainees, and finally close this stain on our nation.


Published on May 7, 2015


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