Obama, Congress Bring Guantanamo Bay Prison Closer to Closed

Startling revelations have built momentum for closing the controversial detention facility — including among defense hawks.

The entrance to Camp Justice at the Guantanamo Bay Naval Base in Guantanamo Bay, Cuba.
National Journal
Stacy Kaper
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Stacy Kaper
Dec. 23, 2013, midnight

The tide is turn­ing in fa­vor of Pres­id­ent Obama’s long-suf­fer­ing bid to shut down Guantanamo Bay.

Obama is­sued an ex­ec­ut­ive or­der to close the Cuba-based de­ten­tion fa­cil­ity on the open­ing days of his pres­id­ency. Five years later, it re­mains open, a sharp re­mind­er of the chasm between the ideal­ism of cam­paign­ing and the harsh real­ity of gov­ern­ing.

But after years of set­backs, the pres­id­ent is mak­ing pro­gress to­ward clos­ing the base — and Con­gress is help­ing.

The ad­min­is­tra­tion is us­ing the lim­ited ex­ec­ut­ive au­thor­ity it has to move pris­on­ers out. And fol­low­ing two and a half years in which the ad­min­is­tra­tion trans­ferred no de­tain­ees, the last few months have seen a series of ag­gress­ive moves to trans­fer pris­on­ers else­where, dwind­ling Gitmo’s pop­u­la­tion to 158 as of Dec. 20.

More im­port­ant, per­haps, is a pro­vi­sion tucked in­to the latest Na­tion­al De­fense Au­thor­iz­a­tion Act that lifts trans­fer re­stric­tions on de­tain­ees who have been cleared to leave and were nev­er charged for a crime. The new rules al­low them to re­turn to their home coun­tries or to cer­tain oth­er na­tions will­ing to re­ceive them.

The ease in policy clears a path for 79 de­tain­ees — half of the fa­cil­ity’s re­main­ing pop­u­la­tion — to leave un­der mon­it­or­ing or oth­er ar­range­ments with their new host coun­try. And many among the oth­er half of the re­main­ing pop­u­la­tion are un­der re­view, which could lead to ad­di­tion­al trans­fers.

So what breathed new life in­to pre­vi­ously flounder­ing ef­forts to close the fa­cil­ity? In short: Dol­lars and cents.

At the be­hest of law­makers, the Pentagon re­leased new data this sum­mer on the costs of Guantanamo Bay — and the totals far ex­ceeded pre­vi­ous es­tim­ates. The U.S. has spent $5 bil­lion on Guantanamo Bay since it star­ted ac­cept­ing pris­on­ers in 2002. Right now, the fa­cil­ity costs the fed­er­al gov­ern­ment an av­er­age of $2.7 mil­lion per pris­on­er per year

In a se­questered spend­ing en­vir­on­ment, that price tag is a red flag for those look­ing to con­serve re­sources for de­fense pro­grams deemed more vi­tal.

Those cost con­cerns are chan­ging the battle lines of the dec­ade-old ar­gu­ment over the fa­cil­ity. Pre­vi­ously, clos­ing Guantanamo was seen as an ar­gu­ment between de­fense hawks and civil liber­tari­ans. Obama and his al­lies ar­gued that the base — where neither the U.S. Con­sti­tu­tion nor Cuban law ap­plies — falls short of the stand­ards of Amer­ic­an so­ci­ety.

Those ar­gu­ments car­ried only lim­ited cur­rency in Con­gress, par­tic­u­larly among de­fense hawks. But now that pro­ponents of clos­ing Gitmo can point both to ideo­lo­gic­al con­cerns and ar­gu­ments that it’s tak­ing up funds that would be bet­ter spent else­where, many in Con­gress think the fa­cil­ity’s days are numbered.

“The change in policy is sig­ni­fic­ant,” said Rep. Adam Schiff, D-Cal­if. “What it re­flects is that we are past the high-wa­ter mark of sup­port for Guantanamo and that sup­port in Con­gress is on the de­cline.”¦ It’s in­dic­at­ive of mo­mentum to close the pris­on, but it is also an in­dic­a­tion of how far we have yet to go.”

Guantanamo spends about 80 times as much per pris­on­er as does a max­im­um-se­cur­ity fed­er­al pris­on, said Chris An­ders, a seni­or le­gis­lat­ive coun­sel with the Amer­ic­an Civil Liber­ties Uni­on.

“You have these num­bers that are just are ab­surdly high and they had been hid­den by the De­fense De­part­ment for years,” An­ders said. “In lots of ad­min­is­tra­tion De­fense de­part­ment vis­its to Sen­ate of­fices and floor speeches, those cost num­bers were really high­lighted, and I think for a lot of mem­bers of Con­gress who might not be as moved by the con­sti­tu­tion­al and hu­man-rights is­sue at Guantanamo Bay, they are moved by the costs.”

The ex­penses are es­pe­cially sig­ni­fic­ant ex­pense con­sid­er­ing that 79 pris­on­ers were cleared to leave four years ago.

And the costs of Gitmo’s mil­it­ary com­mis­sions are far more in­flated. They have res­ul­ted in sev­en con­vic­tions — two of which have been re­versed — res­ult­ing in an ex­pense of about $120 mil­lion per con­vic­tion, ac­cord­ing to An­ders.

To put that in­to per­spect­ive, An­ders said, that’s about 6,0000 times high­er than the $18,000 av­er­age cost of a con­vic­tion in fed­er­al crim­in­al courts in the U.S.

But des­pite re­cent signs of pro­gress, achiev­ing Obama’s long-term goal of clos­ing the base still faces ma­jor hurdles.

Un­der a com­prom­ise ne­go­ti­ated between House and Sen­ate Armed Ser­vices com­mit­tee lead­ers in the Na­tion­al De­fense Au­thor­iz­a­tion Act, Gitmo de­tain­ees re­main banned from trans­fer to the United States to face tri­als or serve de­ten­tion for an­oth­er year. The le­gis­la­tion also bans the De­fense De­part­ment from un­leash­ing any funds to build or ret­ro­fit fa­cil­it­ies in the U.S. to hold Gitmo de­tain­ees through the end of 2014.

Some 31 de­tain­ees have been slated for tri­als or mil­it­ary com­mis­sions, but crim­in­al tri­als could not take place un­less the trans­fer ban to the U.S. is lif­ted and mil­it­ary com­mis­sions could take years.

Only one Gitmo pris­on­er is serving time in the U.S.

“The work that still re­mains in or­der to ac­tu­ally close the fa­cil­ity will re­quire that Con­gress lift the ban to bring­ing some of the de­tain­ees to the U.S. for tri­al,” said Melina Mil­azzo, a seni­or policy coun­sel with the Cen­ter for Vic­tims of Tor­ture. “That’s go­ing to be a hurdle that the next Con­gress or fu­ture Con­gresses are go­ing to have to deal with.”

The Re­pub­lic­an-con­trolled House voted to main­tain the status quo of in­def­in­ite de­ten­tions in June be­fore hav­ing to com­prom­ise with the Demo­crat­ic-con­trolled Sen­ate on a fi­nal bill in Decem­ber.

Sen­ate Re­pub­lic­ans in Novem­ber failed to find 60 votes to block Sen­ate Armed Ser­vices Com­mit­tee Chair­man Carl Lev­in’s plan to ease trans­fer re­stric­tions. But many Re­pub­lic­ans re­main con­vinced that al­low­ing trans­fers out of Guantanamo Bay, par­tic­u­larly to the U.S., puts na­tion­al se­cur­ity at risk.

“While call­ing for the clos­ure of Guantanamo Bay makes a great cam­paign talk­ing point, do­ing so will un­der­mine good in­tel­li­gence col­lec­tion and in­crease the risk that the dan­ger­ous de­tain­ees who are held there will be back on the streets plot­ting to kill Amer­ic­ans,” said Sen. Saxby Cham­b­liss, R-Ga., in Novem­ber. “Yet, for over four years, the pres­id­ent has stub­bornly failed to of­fer any vi­able, long-term de­ten­tion and in­ter­rog­a­tion policy for cur­rent and fu­ture Guantanamo de­tain­ees so that we can col­lect in­tel­li­gence and keep ter­ror­ists from re­turn­ing to the fight.”.

The polit­ic­al obstacles to clos­ing the Guantanamo Bay de­ten­tion cen­ter are not in­sig­ni­fic­ant.

“Obama chose not to spend the polit­ic­al cap­it­al he needed to get it done in the first two years when Demo­crats con­trolled the House and Sen­ate,” said Cully Stim­son, a seni­or fel­low in na­tion­al se­cur­ity with the Her­it­age Found­a­tion.

He poin­ted out that next year is an elec­tion year and if Re­pub­lic­ans take con­trol of the Sen­ate, ad­di­tion­al policy changes to­ward clos­ing Gitmo — such as al­low­ing trans­fers to the U.S. — will be hard to pass.

“The long pole in the tent is what ad­di­tion­al rights, if any, would de­tain­ees get if they came to the U.S.?” Stim­son said. “I do not see any vi­able pres­id­en­tial can­did­ate ad­opt­ing the plat­form of trans­port­ing ter­ror­ists from Guantanamo Bay in­to the United States.”

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