President’s failure to offer a plan to close Guantánamo

President Obama’s efforts to close Guantánamo suffered a serious blow recently.  Congress passed an annual defense authorization bill that includes new, strict requirements for transferring detainees from Guantánamo, including many long cleared for release.  The National Defense Authorization Act (NDAA) also bans detainee transfers to the United States and a handful of other countries, including Yemen, home to most of the 114 remaining detainees.  It is plainly part of an attempt to thwart the president’s promise to close Guantánamo, but he has no one to blame but himself.

In July, the president promised to send members of Congress a plan to close Guantánamo before he leaves office in 15 months.  His senior counterterrorism advisor, Lisa Monaco, said the plan would call for repatriating or resettling more than 50 detainees currently approved for transfer; speeding up the Periodic Review Board process for about 40 additional men to determine their eligibility for transfer; bringing a small number of men into the United States for prosecutions; and detaining any remaining men in stateside prisons indefinitely.  Monaco said the administration would work with Congress to implement the plan and loosen transfer restrictions under current law.

But the plan did not arrive on Capitol Hill before legislators voted on the NDAA.  Senate Armed Services Committee Chairman John McCain (R-Ariz.) blamed the White House failure to deliver a plan for the draconian provisions that ended up in the bill.  While Republicans in Congress are unlikely to support the administration’s efforts to close Guantánamo under any circumstances, the president’s failure to deliver a plan gave up what may have been his last, best chance to improve the law on Guantánamo.  The only option he has now is a threat to veto the bill – a threat he made in prior years but failed to act on.

The president’s missteps on Guantánamo are unfortunate.  But even if he could convince Congress to change the law, perhaps after a veto, his plan would not actually close Guantánamo.

The plan outlined by Lisa Monaco offers nothing new.  The president has always had legal authority to transfer cleared men and close the prison.  The problem is that he is not using it.  For example, he is not requiring the Defense Secretary to act promptly on transfers negotiated by the State Department.  Nor is he instructing the Justice Department to stand down on detainee court challenges that would trigger a statutory exception to the onerous transfer restrictions.  Instead, the government reflexively opposes requests for release by detainees such as our client Tariq Ba Odah, who weighs 74 pounds and is gravely ill, and who is cleared for release.  Litigating every issue may have made sense a decade ago, but it surely makes no sense now to fight to hold men that the administration says it wants to release in order to close the prison.  It is self-defeating.

The president could also immediately devote more resources to the Periodic Review Boards, and demand an increase in the pace of reviews so that every eligible detainee has a hearing within a year.  Almost 90 percent of detainees who have gone through this administrative process have been cleared for transfer.  If anything close to that clearance rate holds, the Periodic Review Boards could bring the number of men designated for indefinite detention close to zero, which would give the president greater options for closing Guantánamo without resort to indefinite detention without charge in the United States.

The president could likewise unilaterally suspend the failing military commissions.  Instead, he could free Justice Department prosecutors to negotiate plea agreements with several detainees willing to plead guilty and cooperate in federal court in exchange for the relative fairness and certainty denied in the military commissions.  The legal and political opportunities these cases might present to help the administration maneuver around or through the current ban on U.S. transfers are virtually limitless.  All that is required is an order from the White House.
Last, and perhaps most fundamental, the president’s plan to transfer men to the United States for continuing indefinite detention will not close Guantánamo; it is simply a way of moving it into this country.  The problem with Guantánamo is not just its location, but also its embrace of indefinite detention, which the Center for Constitutional Rights strongly opposes.  Transferring men not charged or convicted of any crimes after nearly 14 years in Guantánamo to supermax prisons in the United States would destroy many of them and violate the Geneva Conventions.

The president does not need Congress to change the law, and he is wasting precious time devising a plan that will fail to close Guantánamo.  It is still theoretically possible to achieve closure by the end of his administration, but he must implement substantial policy changes and take bold actions now.  Whether that will happen is up to one person – Barack Obama.

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