To Close Guantanamo, President Obama Must Veto the NDAA

The latest version of the 2016 National Defense Authorization Act (NDAA), which authorizes next year’s funding for the Department of Defense, is in the final stages of Congressional approval. Because this year’s bill would again institute harsh restrictions on transferring Guantanamo Bay detainees, Human Rights First and 13 other groups urged Congress to vote against it, but the bill is expected to pass.

The restrictions would thwart President Obama’s goal of closing the prison before his second term ends, a goal supported by national security leaders. Former president George W. Bush agreed. If President Obama still wants to close Guantanamo, he should veto the NDAA and renegotiate the Guantanamo provisions with Congress to ensure its eventual passage.

If the proposed transfer restrictions go into effect, no Guantanamo detainee could be transferred to the United States (for trial, imprisonment, or even emergency medical treatment). It would also strictly limit transfers to other countries, even for detainees cleared for release by both the Bush and Obama administrations. Even if Congress changes these provisions in next year’s NDAA, there would still not be enough time left to clear out the prison by the end of Obama’s tenure. Here’s why:

NDAA timing: The NDAA is usually signed into law very late in the year. In the past three years, Congress hasn’t passed the bill until December. If the 2016 NDAA is passed and signed with the current transfer restrictions, the only hope for transferring the 50-plus cleared Guantanamo detainees would be in next year’s NDAA. But even if restrictions are loosened in next year’s NDAA and President Obama could sign it into law a few months earlier than usual, the administration would have little to no time to transfer cleared detainees and move the rest to an alternate facility.

30-day transfer notification: Even the current, less onerous restrictions require the administration to provide Congress a 30-day notice before any transfer. The only exception since the requirement went into effect on December 26, 2013 was the exchange of five Afghan detainees for Bowe Bergdahl. If it appears in the 2017 NDAA, transferring cleared detainees before the end of the Obama Administration could be impossible.

An alternate prison facility in the United States: To close the prison, the Obama Administration is considering bringing a number of detainees slated for indefinite detention to a federal or military facility in the United States. Though it has completed preliminary site assessments, selecting a facility and updating it to accommodate Guantanamo detainees would likely take months. Building a new prison from scratch would likely take even longer.

Given these limitations, it is extremely important that President Obama veto the 2016 NDAA if it passes in its current form. Congress can’t prevent a presidential veto since the House passed the bill 270-156, short of the 290 votes needed to override it.

But even if Obama vetoes this bill and negotiates a more favorable NDAA, the administration needs to speed up the transfers of cleared detainees and the Periodic Review Board hearings that determine if detainees slated for indefinite detention are still a serious threat to the United States. Otherwise, it’s hard to imagine how President Obama can possibly keep his promise to close the prison at Guantanamo Bay.

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Published on October 2, 2015

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