The US Congress is now considering a new bill that could facilitate the closure of Guantanamo—something crucially important to US national security interests. The key provisions are in Section 1031-1034 of the National Defense Authorization Act (NDAA) for fiscal year 2014 that was passed out of the Senate Armed Services Committee (SASC) this summer (as S. 1197). They would provide the administration more flexibility to transfer detainees out of Guantanamo Bay. They would also allow some detainees to be transferred to the US for trial in federal courts.
Background: Ongoing Detentions in Guantanamo Bay
It is now nearly 12 years since the detention facility at Guantanamo Bay opened in January 2002, and almost five years since President Obama pledged to close the facility within one year. Yet, 164 men remain in detention there. More than half of them (84) were cleared for transfer by the Obama administration in 2010. Earlier this year, the majority of detainees resorted to a hunger strike in a desperate attempt to draw attention to the fact that they have been held without charge or trial for, in many cases, more than a decade.
President Obama has the ability to transfer detainees out of the facility, but he has claimed that restrictions enacted by Congress on transfers have prevented him from doing so. Indeed, beginning in 2010 Congress started including increasingly stringent provisions in each yearly NDAA that, though not insurmountable, placed hurdles in the way of transferring detainees out of Guantanamo. Specifically, the most onerous parts of the provisions, in Section 1028 of the law, require the Secretary of Defense to “certify” he has obtained certain guarantees from countries that they can prevent released detainees from threating the United States in the future or becoming involved in terrorism. The certification requirement can be waived if the government to which the detainee is transferred agrees to take “alternative actions” that will “substantially mitigate” any risk of future terrorism on the part of the detainee. But the administration claims such waivers still do not provide them with enough flexibility to transfer many detainees out of Guantanamo. Indeed, the restrictions seem especially onerous and unnecessary when applied to the 84 detainees already cleared for transfer by the administration. Since the restrictions were enacted, the administration has only transferred two detainees out of Guantanamo.
New Senate Proposal Easing Restrictions on Transfer
The new detention provisions are contained in sections 1031-1034 of the Senate Armed Services Committee (SASC) draft of the National Defense Authorization Act (NDAA) for 2014 (S.1197). They would loosen the restrictions imposed by Congress by removing the certification requirement and replacing it with several “factors to be considered” when making transfer decisions. The factors are almost identical to the requirements under the previous NDAA except they are mostly advisory, not requirements. In this way the proposed provisions would increase the president’s flexibility to make transfers, likely leading to more detainees being released from Guantanamo.
The Cleared Detainees
Whether the new provisions are adopted or not, the first step towards closing the facility begins with transferring the 84 detainees who have been slated for release out of Guantanamo. Those who oppose such transfers and seek to keep Guantanamo open often cite concerns that released detainees may engage in terrorism. The Office of the Director of National Intelligence (DNI) puts out biannual figures about the number of former Guantanamo detainees they assert are either confirmed to have engaged in terrorism or are suspected of having done so since release.
According to DNI’s latest report, from September 2013, about 17 percent of the approximately 600 people released from the facility over the past 12 years are “confirmed” and 12 percent are “suspected” of having engaged in terrorism. However, independent, credible analyses of DNI reports by the New America Foundation (NAF) indicate that these numbers are exaggerated. The NAF study estimates that the actual percentage is closer to 2.8 percent “confirmed” and 3.5 percent “suspected” of engaging in militant activities against US targets and another 2.5 percent against non-US targets. (NAF’s study analyzed DNI figures from earlier this year, but those numbers did not differ substantially from the more recent DNI report.) This adds up to 8.8 percent confirmed or suspected to have taken part in any form of militant activity anywhere in the world.
Even if the government figures were true, what they actually show is that the vast majority of people released from Guantanamo have not engaged in terrorism. Additionally, the DNI numbers are well below the 68 percent recidivism rate found by a Bureau of Justice Statistics study of recidivism after general criminal convictions in 15 US states. Historically, the US has rejected the use of indefinite detention of persons who have not been convicted of any crime as a valid approach to prevent possible future crimes. There are many people in the world and in this country that might one day commit crimes, but the United States has not locked them up indefinitely.
Guantanamo is also a recruiting tool for those who wish to harm the US, and its continued existence harms the ability of the United States to encourage other countries to comply with the rule of law. The bottom line is that the administration needs to assume some risk that those released may become involved in terrorism even if that risk is objectively low. And that risk must be balanced against the harm to national security that occurs every day that Guantanamo remains open.
Ending the Use of Flawed Military Commissions
In addition to creating greater flexibility to transfer detainees out of Guantanamo, the new provisions also clear the way for the transfer of detainees to the US for trial before federal courts. Lifting existing restrictions on such transfers is critically important to securing accountability in an efficient and fair manner. The military commissions operating in Guantanamo, now in their third iteration, have taken a shameful number of years to prosecute important cases and are so deeply flawed they make a mockery of US commitments to fair trials and justice.
Currently only six defendants face any formal charges at Guantanamo: five co-defendants accused in the September 11, 2001 attacks that killed nearly 3,000 people, and one defendant accused in the USS Cole bombing in Yemen in 2000 that killed 17 US sailors. These crimes took place 12 and 13 years ago, yet still the trials have not taken place. The proceedings have been bogged down in pre-trial hearings about issues that would either never have come up in federal court – with over 200 years of precedent and established rules – or would have been dealt with swiftly there. These issues include: how mail will be delivered to the defendants; what items can be brought into attorney-client meetings; whether listening devices disguised as smoke detectors in attorney-client meeting rooms violate rules protecting privileged communications; and whether the Constitution even applies at Guantanamo.
Only seven other cases have been prosecuted in the military commissions – all of them resulting in convictions – two verdicts after trial and five plea deals. Both verdicts after trial were overturned on appeal. The prosecution has already said it only plans to prosecute another seven more detainees – though who those detainees are and when their prosecution will begin is still not clear.
The federal court system, while not without its flaws, has been far more effective at trying terrorist suspects in accordance with fair trial rights than the military commissions. Since September 11, hundreds of terrorism suspects have been prosecuted including Omar Abdel-Rahman, the “blind sheikh,” and Ramzi Yousef, both organizers of the 1993 World Trade Center bombing; Zacarias Moussaoui, one of the September 11 plotters; Richard Reid, the “shoe-bomber”; Umar Abdulmutallab, the 2009 Christmas Day “underwear bomber”; and Faisal Shahzad, the 2010 “Times Square bomber,” to name a few. Each of these individuals is now serving a life sentence in federal prison.
The new provisions in the SASC draft of the NDAA would lift the bar on the use of funds to transfer detainees to US federal court for trial, which is the only real option for the administration if it hopes that any future verdicts obtained will be able to withstand an appeal.
One unfortunate feature of the provisions is that they allow for the transfer of Guantanamo detainees to the US not only for trial, but also for continued detention. Indefinite detention without charge or trial is a violation of international law regardless of where it occurs. Continuing this practice – whether at Guantanamo, in the US, or elsewhere – has no justification. We strongly support passage of the provisions because they would provide the administration more flexibility to transfer detainees out of Guantanamo, and would better secure fair trials for those the administration plans to prosecute, but would caution that we firmly oppose the use of these provisions to continue indefinite detention without trial. The correct course of action is for the administration to either prosecute or release the remaining detainees at Guantanamo Bay.
 Because Congress did not pass a continuing resolution before government shutdown on October 1 2013, technically the restrictions are not now in place, but when a budget is passed the FY13 restrictions will be re-imposed.