The Defense department’s insubordination on closing Guantánamo

American military doctrine is clear: when a superior officer identifies a lawful strategic objective, forces under his or her command must work to achieve it without delay.  When it comes to Guantánamo, however, the Pentagon continues to obstruct President Obama’s mandate to close the prison.  Their defiance is tantamount to insubordination.

Obama has said repeatedly and without equivocation that closing Guantánamo is a moral imperative and national security priority for the United States.  He has further said it serves as a recruiting tool for terrorists.  The president started out well on Guantánamo, signing an executive order on his second day in office requiring the prison to be shuttered within one year.  He failed to achieve that goal because of missteps early in his administration, but the Pentagon, working closely with the State Department, transferred 67 detainees during his first two years in office.

{mosads}In what has become an all too familiar pattern in recent years, however, momentum was lost and closure efforts stalled when the president lost his nerve in the face of political opposition.  By January 2011, he had effectively turned his back on Guantánamo, and only four men left the prison in the two and a half years that followed.

In May 2013, nearly two years ago, the president returned his attention to Guantánamo in response to a mass hunger strike by the men and recommitted to closing the prison.  He said Guantánamo is “a symbol around the world for an America that flouts the rule of law,” and “there is no justification beyond politics . . . to prevent us from closing a facility that should never have been opened.”  He warned that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.”  He lifted a self-imposed moratorium on transfers to Yemen, and appointed new envoys at the State and Defense Departments to oversee closure efforts.  Transfers resumed, and 11 men were released between August and December 2013.

Then transfers stopped, and momentum was lost again, because Defense Secretary Chuck Hagel refused to sign the paperwork necessary to carry out more transfers.  In the first 11 months of 2014, only six detainees left the prison, five of whom were exchanged in a prisoner swap for a U.S. soldier held by the Taliban.  In November 2014, Hagel announced his resignation amid conflicts with the president, including his refusal to transfer detainees.  Transfers quickly resumed: 22 men were released in November and December 2014, and five more in January 2015.  Since then, however, the State Department envoy resigned – and hasn’t been replaced – and the momentum for closure has once again ground to a halt.  Now, 122 men remain in limbo, half unanimously approved for transfer by all relevant security agencies.

At this point transfers are not expected to resume until May or June, and it looks increasingly likely that Obama will fail to close Guantánamo in the remaining 18 months of his administration.  Whether that happens will be determined largely by the Pentagon’s willingness to transfer cleared men out of the prison and step up the pace of the Periodic Review Boards so that more men may be cleared.  There are reportedly transfers approved in 2014 that have not been executed by the Pentagon.  There are also reportedly several transfers awaiting Defense Secretary Ashton Carter’s signature.  It makes you wonder whether these transfers are hitting his desk, or why they may be collecting dust on the Defense envoy’s desk.  You also have to wonder why, in the face of continuing congressional opposition to closure, Marine General John Kelly would tout a purported “recidivism” figure of 30 percent when data released by the Director of National Intelligence shows that figure is below 6 percent and falling for men transferred by the current administration.  Is the Pentagon working against the closure of Guantánamo?

Obama recently told a seventh-grader that he regrets not closing Guantánamo on his first day in office. His regret pales in comparison to that of our clients who continue to languish there, even though many have been cleared by the government for release for years. Yet despite the obstacles he has had to navigate, the president has never wavered from his stated commitment to closing Guantánamo.

From the ongoing indefinite detention of cleared detainees, to the glacial pace of the Periodic Review Boards, to the collapse of most military commission trials, the dysfunction in Guantánamo military operations is palpable.  What remains to be seen is whether Obama, now with his back to the wall on closing Guantánamo, will continue to tolerate the intransigence and clear lack of effectiveness that plague the forces under his command.

Dixon is a senior attorney at the Center for Constitutional Rights, and represents detainees in federal court and before the military commissions at Guantánamo Bay.