As Congress begins debate on the 2014 defense authorization bill this week, both the president and the legislature have an opportunity to make meaningful progress toward closing Guantánamo and ending the human rights tragedy there. President Obama has promised to shutter the off-shore prison, which was designed to be outside the law and reserved exclusively for Muslims, but has until now failed to use the power that he has under current law to do it. Congress, meanwhile, has placed unnecessary restrictions on releasing detainees.
Obama started out strongly on Guantánamo, but soon lost the initiative and surrendered closure issues to his political opponents in Congress. They filled the void by enacting legislation restricting – for the first time in American history – the executive’s ability to transfer detainees held in military custody. The National Defense Authorization Act (NDAA) imposed onerous certification requirements for transfers to foreign countries, including close allies that supported our military operations in Afghanistan, but did not bar the administration from releasing anyone. The restrictions have been renewed twice with the addition of a waiver provision, each time over an unfulfilled presidential veto threat. Congress should eliminate them and pass the Senate Armed Services Committee version of the latest defense authorization bill.
The practical reality is that transfers have all but ceased because of the current restrictions. The failure to transfer more than a handful of detainees in nearly three years has predictably caused despair and hopelessness among the remaining prisoners, culminating in a widespread hunger strike earlier this year. Amid increased public pressure and fear that men would starve themselves to death to be free from Guantánamo, Obama was forced to refocus his attention on the prison and reaffirm his commitment to closing it. In May he acknowledged that “GTMO has become a symbol around the world for an America that flouts the rule of law,” and called on Congress to lift the restrictions on detainee transfers. Even as he said that, he was heckled by a protester who implored him to use his existing authority to transfer detainees. It was obvious from his physical reaction that the criticism stung – he knows that blaming Congress for his failure to close Guantánamo is disingenuous and cannot withstand scrutiny.
Yet exactly six months later we have seen only the most marginal progress toward closing Guantánamo. Obama has appointed senior envoys at the State and Defense departments to shepherd the closure of the prison, and has withdrawn opposition to a lawsuit by a detainee who is so ill that he cannot feed himself; but only two detainees have left the prison pursuant to NDAA certifications. Two of the 86 prisoners approved for transfer were voluntarily repatriated to Algeria in August. But no one has been certified for transfer to any other country, and no such transfers appear on the horizon. It seems from the outside that Algeria is the only country presidential advisors think can satisfy the NDAA certification criteria – and for the very reasons that the remaining Algerian detainees who have been cleared for transfer fear return there. Algeria is an authoritarian regime that is willing to do the U.S.’s bidding and restrict the rights of former detainees in ways that democratic allies such as France or Luxembourg would not.
This presents a quandary for the administration. If it truly believes that Algeria is the only country that can be certified, then it has two choices. It can transfer no one while hoping for congressional action in the coming weeks to eliminate the current transfer restrictions; or it could try to forcibly repatriate the cleared Algerian detainees, which would be fraught with peril both for the U.S. and Algeria. Any such transfers – to torture or persecution – would provoke a firestorm of controversy, not to mention the protesters in orange jump suits who would surely picket Algeria’s embassies.
Fortunately, there is another solution. Obama can and should take decisive action to close Guantánamo, because the obstacles he faces are political not legal. He can start by directing his administration to certify the remaining cleared Algerians for transfer to the European nations that have offered to resettle them, and certify other cleared detainees who wish to return home to countries that want them back, including Tunisia. And he must transfer at least some Yemenis, who comprise the bulk of the detainee population.
Whether Obama has the political fortitude to do this is uncertain. But if he is serious about closing Guantánamo then he must act now. Guantánamo remains frozen as a permanent feature of the American landscape because of his repeated failure of leadership on the matter. How long this injustice is allowed to continue is up to him.
Dixon is a senior attorney at the Center for Constitutional Rights, representing clients in federal court and before the military commissions at Guantánamo Bay.