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The US Congress’ passage of a defense bill that will ease restrictions on the transfer of Guantanamo Bay detainees is an important step towards closing the detention facility, Human Rights Watch said today. On December 19, 2013, the Senate passed the 2014 National Defense Authorization Act (NDAA), which will be sent to President Barack Obama for signature.

Congress for several years has imposed numerous restrictions on the transfer of detainees from Guantanamo Bay to their home countries, or to third countries if they required humanitarian resettlement. It has also banned the transfer of detainees into the US, including for trial. The 2014 NDAA, while still banning transfers to the US, loosens the restrictions on the transfer of detainees to their home or third countries and provides the administration with more flexibility in doing so.

“After years of imposing obstacles to detainee transfers, this is a hopeful sign that Congress may finally be open to helping to close Guantanamo’s prison,” said Andrea Prasow, senior national security counsel and advocate at Human Rights Watch. “President Obama should use this authority and press forward with transferring detainees, many of whom were cleared for release nearly four years ago.”

In recent weeks, the Obama administration repatriated two detainees to Algeria, two to Saudi Arabia, and two to Sudan; the two Algerian men opposed repatriation out of concern that they would be targeted by militants in Algeria. There are currently 158 detainees remaining at the prison, 79 of whom were recommended for release by an interagency task force in 2010. 

The Senate version of the NDAA contained language that would have also allowed for the transfer of Guantanamo detainees to the US to stand trial in federal courts. The final language of the bill was negotiated between members of the House and Senate Armed Services Committees and those provisions were removed. Because the bill continues to prohibit transfers to the US for trial, the administration can currently only try detainees in the seriously flawed military commissions at Guantanamo.

The military commissions at Guantanamo have been marred by the use of evidence obtained by coercion, procedural irregularities, inconsistent application of ever-changing rules of evidence, violations of attorney-client privilege, inadequate defense resources, and lack of public access. Two federal appeals court rulings have recently called into question the government’s ability to use military commissions for some charges, holding that the military commissions do not have jurisdiction over the offenses of conspiracy and providing material support for terrorism because they are not war crimes. Both charges are routinely prosecuted in federal courts in the US.

While the new provisions in the NDAA should make releasing the cleared detainees easier, the Obama administration continues to claim it has the authority to detain at least 46 of the remaining 158 men indefinitely at Guantanamo. Prolonged, indefinite detention without trial is a violation of international law. If there is insufficient evidence that those men committed crimes, they should be released, Human Rights Watch said.

“The continued detention of men recommended for transfer nearly four years ago is just one of many perversions of the law at Guantanamo,” Prasow said. “The administration should bring an end to indefinite detention without trial and shut the prison down.”

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