Even prior to his inauguration, Barack Obama said that during his first week in office as president of the United States, he would issue an executive order closing the Guantanamo Bay detention facility. However, he cautiously hedged by adding the following:
[C]losing Guantanamo…is a challenge. It’s going to take some time. We are going to make sure that the procedures we set up are ones that abide by the Constitution.
“The prison at Guantanamo has weakened American national security,” Obama said in explaining the need for action. “It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it.”
Obama did in fact issue that executive order his second day in office. At that time, there were 240 detainees who remained at Guantanamo, of which 150 individuals were eligible for release or transfer to a foreign home or host nation. The order called for the balance to be tried by military commissions for violation of the laws of war, or to continue to be indefinitely held in custody because they were too dangerous for release or transfer. It also called for Guantanamo to be closed within one year of the signing of the order.
As a professor of public law whose research and scholarship focusing on the Obama presidency and its counterterrorism strategies, I would suggest that Obama will end his term in office without achieving this priority objective.
A legal black hole
Even before Obama took office, Guantanamo prison camp had developed a reputation as a legal black hole into which those who were captured in the war on terror were unceremoniously dumped.
During his first term, the president tried to acquire the Thomson Correctional Center, a new vacant super-max security prison located in northwestern Illinois, as the site to send the remaining detainees.
But Congress, which was controlled by Democrats in 2010, refused to support any requested military funding to achieve the president’s objective. In the past four years, with Republicans in control of both houses of Congress, the president’s ability to shut down the prison has grown more remote.
The president’s efforts to shut down Guantanamo have even been resisted by members of his own administration. When news broke that Chuck Hagel was leaving his position as Secretary of Defense after less than two years on the job, Hagel’s reservations about releasing Guantanamo detainees had reportedly been a principal cause for his departure. Interestingly, current Secretary of Defense Ash Carter appears to have similar concerns about this issue. To date, he has refused to authorize any new transfers.
Under current law, Carter must assert to Congress that the United States has taken adequate measures to mitigate any risks posed by release of a detainee. That certainly can and does frustrate the president who is, after all, commander-in-chief of the United States.
There are 116 men held at Guantanamo with almost half eligible for immediate release. That number is down significantly from the 240 who were being held when Obama took office, but most of the successful transfers occurred during his first term.
Currently there exists no possibility that any of the detainees can be sent to the United States due to a ban passed by Congress. Furthermore, there is an extensive process that requires multiple agency approval prior to any of those are eligible for release.
A renewed push
US Secretary of State John Kerry last month appointed Lee Wolosky as a special representative to effectuate the closure of Guantanamo Bay. The administration also confirmed that President Obama is developing a closure plan before the president’s second term expires. Still, it is doubtful that this objective will be achieved by the 15th anniversary of 9/11.
Congress has just returned from its late summer recess. It has been reported that several lawmakers in both houses are attempting to impose even stricter constraints on conditions for release of detainees to be imposed in the annual National Defense Authorization Act. Republicans in particular have maintained that as long as we keep fighting the war on terrorism against the Islamic State, there should be a total ban on releasing any detainee regardless of his eligibility status. Senator John McCain, chair of the Senate Armed Services Committee, is a strong proponent of closing the prison and he has advocated for Congress to have the ability to review the White House’s plan for shutting down Guantanamo as part of the NDAA for the next fiscal year.
This indefensible paralysis was described most eloquently by retired Supreme Court Justice John Paul Stevens during a speech he delivered in May:
The onerous provisions … which have hindered the president’s ability to close Guantanamo, make no sense, and have no precedent in our history…Congress’s actions are even more irrational than the detention of Japanese Americans during World War II.