How to Close Gitmo Without Swapping Prisoners

GUANTANAMO BAY, CUBA - SEPTEMBER 16:  (EDITORS NOTE: Image has been reviewed by the U.S. Military prior to transmission.) A U.S. military guard carries shackles before moving a detainee inside the U.S. detention center for "enemy combatants" on September 16, 2010 in Guantanamo Bay, Cuba. With attempts by the Obama administration to close the facility stalled, some 170 detainees remain at the detention center, which was opened by the Bush administration after the attacks of 9/11. The facility is run by Joint Task Force Guantanamo, located on the U.S. Naval Station at Guantanamo Bay on the southeastern coast of Cuba.  (Photo by John Moore/Getty Images)
National Journal
Stacy Kaper
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Stacy Kaper
June 15, 2014, 3:56 p.m.

The up­roar over Pres­id­ent Obama’s ex­change of Army Sgt. Bowe Ber­g­dahl for five Taliban pris­on­ers held at Guantanamo Bay still re­ver­ber­ates across Cap­it­ol Hill, re­open­ing a de­bate about the fate of pris­on­ers held at the stor­ied pris­on.

But the fur­or hasn’t yet upen­ded the policies that al­low de­tain­ees to keep trick­ling out.

Here are the facts about the status of the de­tain­ees at Gitmo.

The ad­min­is­tra­tion has already cleared 78 of the 149 re­main­ing pris­on­ers for trans­fer. Hav­ing nev­er been charged with a crime, these de­tain­ees have since been deemed to pose no na­tion­al se­cur­ity threat by de­fense and in­tel­li­gence of­fi­cials and could be set for de­par­ture at any time.

Un­der the law, the ad­min­is­tra­tion can con­tin­ue re­leas­ing those who have been cleared to their home coun­tries, or to oth­er host na­tions if re­leas­ing them to their own coun­try could be dan­ger­ous and res­ult in per­se­cu­tion. Obama has re­leased 89 pris­on­ers dur­ing his ten­ure.

In fact, the ad­min­is­tra­tion has doubled down since the Ber­g­dahl con­tro­versy broke, with ad­min­is­tra­tion of­fi­cials in­sist­ing the White House re­mains com­mit­ted to Obama’s goal of con­tinu­ing the trans­fer of oth­er de­tain­ees and ul­ti­mately clos­ing the fa­cil­ity. Gitmo was set up in the wake of 9/11 as a place to hold sus­pec­ted ter­ror­ists with little hindrance from do­mest­ic or in­ter­na­tion­al law, and it has been as­sailed by hu­man rights ad­voc­ates as op­er­at­ing out­side the law.

There are ser­i­ous fin­an­cial con­sid­er­a­tions for main­tain­ing the Guantanamo Bay de­ten­tion fa­cil­ity, which plays to the hands of fisc­al con­ser­vat­ives. The U.S. has spent at least $5 bil­lion on Guantanamo Bay since it star­ted ac­cept­ing pris­on­ers in 2002.

And the fa­cil­ity costs the fed­er­al gov­ern­ment an av­er­age of $2.7 mil­lion per pris­on­er per year.

There are of course com­plic­a­tions to clos­ing Gitmo, and the re­cent back­lash in Con­gress could con­tin­ue to dog Obama’s plans.

Among the 78 de­tain­ees cleared for trans­fer, 58 are Ye­meni, and there are linger­ing se­cur­ity con­cerns about re­leas­ing them back to their home coun­try, giv­en the in­stabil­ity there. What’s more, the Sen­ate Armed Ser­vices Com­mit­tee is pro­pos­ing a one-year ban on trans­fer­ring de­tain­ees to Ye­men, as part of the Na­tion­al De­fense Au­thor­iz­a­tion Act, which Con­gress needs to fi­nal­ize be­fore year end.

Then there are oth­er com­plic­a­tions. There are 23 pris­on­ers who are slated for pro­sec­u­tion but stuck in leg­al limb, with un­cer­tainty that they can be tried through the mil­it­ary tribunal pro­cess there, giv­en re­cent ques­tions raised by the courts about the leg­al­ity of do­ing so. And there is no clear al­tern­at­ive as there is cur­rently a ban in against trans­fer­ring any de­tain­ees to the U.S. for in­car­cer­a­tion or crim­in­al tri­als—al­though the Sen­ate Armed Ser­vices Com­mit­tee has also pro­posed elim­in­at­ing that re­stric­tion.

There is also an­oth­er seg­ment of the de­tain­ee pop­u­la­tion at Guantanamo Bay — some 38 people who are con­sidered in­def­in­ite de­tain­ees, who have nev­er been charged or con­victed of a crime, but have not been deemed safe enough to clear for trans­fer. Their fate re­mains in limbo with no clear end in sight.

Fi­nally, there are sev­en de­tain­ees fa­cing mil­it­ary tribunals and three de­tain­ees who have been con­victed and are either serving or await­ing a sen­tence.

In the mean­time, the out­look for Gitmo is com­plic­ated by the fact that once the last U.S. troops leave Afgh­anistan, it is un­clear that there will be a leg­al basis to con­tin­ue to hold de­tain­ees at the fa­cil­ity. The gov­ern­ment is re­ly­ing on the law-of-war au­thor­it­ies, which re­lies on the U.S. be­ing en­gaged in an armed con­flict to hold sus­pec­ted en­emy com­batants.

For now, Obama can keep trans­fer­ring out cleared de­tain­ees without any con­ten­tious pris­on­er swaps, but there is no easy solu­tion for what to do with those be­ing held in­def­in­itely or stuck in leg­al limbo.

How Con­gress acts this year on Gitmo policy could de­pend on wheth­er the Sen­ate takes up the de­fense au­thor­iz­a­tion act and re­con­ciles it with the House be­fore or after the elec­tions. Not to men­tion how fresh the Ber­g­dahl brouhaha is in crit­ics’ and voters’ minds.

The House For­eign Af­fairs Com­mit­tee plans to ex­am­ine the trade’s im­plic­a­tion on na­tion­al se­cur­ity and the fight against ter­ror­ists in a joint sub­com­mit­tee hear­ing Wed­nes­day, and crit­ics are con­tinu­ing to use it as ammo against Obama’s lead­er­ship as com­mand­er-in-chief.

And Sen. Thad Co­chran, a Mis­sis­sippi Re­pub­lic­an, an­nounced Fri­day he is lead­ing a band of law­makers in de­mand­ing a leg­al opin­ion on wheth­er the Obama ad­min­is­tra­tion vi­ol­ated fed­er­al law in trans­fer­ring the de­tain­ees without con­gres­sion­al con­sent to spend such funds.

So the fu­ture of the pris­on con­tin­ues to be un­cer­tain.

“The out­look cur­rently is un­clear,” said Melina Mil­azzo, a seni­or policy coun­sel with Cen­ter for Vic­tims of Tor­ture. “We won’t know un­til the next Na­tion­al De­fense Au­thor­iz­a­tion Act, later this year, wheth­er clos­ing Guantanamo will be a real­ity for this ad­min­is­tra­tion or a fu­ture ad­min­is­tra­tion.”

Mil­azzo ad­ded, “It will really have to take a com­bined ef­fort by the ad­min­is­tra­tion and Con­gress to close Guantanamo.

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