Obama can't close Guantanamo Bay outright. But could he simply empty it out?
By GREGORY KORTE | USA Today (Tribune News Service) | Published: February 25, 2016
WASHINGTON (Tribune News Service) — President Barack Obama's plan to close Guantanamo Bay outright faces stiff political opposition from Congress. But the plan the president outlined Tuesday could all but empty out the military prison by the time he leaves office.
The White House says the closure of the facility, by transferring the remaining detainees to a prison somewhere in the United States, is still its ultimate goal. But one often-overlooked part of the closure plan could greatly reduce the number of detainees there.
"The big headline is this plan to close Guantanamo, and Congress basically saying no to him," said Chris Anders, senior legislative counsel of the American Civil Liberties Union. "But there are a lot of provisions — a lot of pieces in the speech and in the plan — that go toward the eventual closure of Guantanamo."
The most important piece: Obama said Tuesday he hoped to transfer 35 prisoners already approved for release to other countries — and evaluate 46 more detainees to see whether they, too could be transferred. If the Obama administration determines that most of those remaining detainees are low security risks — and if they can find other countries willing to take them — the prison could hold a fraction of its current 91 detainees by the time Obama leaves office.
That would leave only a handful of hard cases subject to indefinite detention, in addition to the 10 now in some phase of being tried, convicted or sentenced by a military commission. And that, in turn, could further put legal, political and diplomatic pressure on Congress.
"That is part of our strategy for closing the prison," White House Press Secretary Josh Earnest acknowledged Wednesday.
The most important of those is Obama's promise to speed up the work of the Periodic Review Boards, which Obama set up by executive order five years ago. That process has been slow but effective: Of the 21 detainees evaluated under that system, 18 were deemed by law enforcement, military and intelligence officials to be safe for release or transfer to another country.
The plan released Tuesday would every speed up those evaluations, completing them by by this fall. If trends continue, only six or seven of the 46 remaining detainees would be ineligible for transfer. And as each one is transferred, the per-detainee cost — now about $4.9 million per year, according to the Pentagon — will only increase.
"There's a good chance that by the end of the summer, the population will be half, and then if you divide it out, that's $10 million per detainee per year," Anders said. "So then you're going from insane to completely insane numbers. A couple of detainees being guarded by hundreds and hundreds of soldiers who could be doing something to protect America's security instead of sitting at a base in Cuba."
The White House hopes that those numbers will ultimately convince Congress that it's not worth the cost to keep the facility open. But there are also hurdles to getting to those numbers, Earnest said.
Congress requires the secretary of Defense to personally sign off on each transfer and to notify Congress 30 days before it takes place.
"That is a lot of red tape and a lot of bureaucracy that we have routinely complied with, and we're going to continue to do that work," Earnest said. "Even in the face of continued congressional obstruction."
Another hurdle: The United States has to find a country willing to accept a transfer. About 35 counties have agreed in principle to accept a Guantanamo detainee — and take on the security and humanitarian treatment obligations required, Earnest said. But many of the remaining detainees are citizens of third countries like Yemen, where a low-grade civil war makes it impossible to ensure that detainees won't return to the battlefield as terrorist fighters.
And Congress may be poised to add yet another hurdle. Even as the Defense Department released the plan Tuesday, House Foreign Affairs Committee Chairman Ed Royce introduced a bill that would require the Pentagon to declassify information about the detainees before they could be transferred.
Royce said the bill would "bring much-needed public scrutiny to the administration's mad rush to transfer detainees out of Guantanamo Bay before President Obama leaves office."
The Pentagon's report to Congress said Obama could also extradite detainees to other countries for prosecution.
Still, lawyers and human rights activists said it's entirely possible to reduce the number to zero by the time Obama leaves office -- at which point the closure would be a fait accompli.
"I think mathematically it's possible for the president to reduce the number to zero before he leaves office, but I'm not sanguine that it's going to happen,"said Wells Dixon, a senior attorney for the Center for Constitutional Rights, which represents Guantanamo detainees. "And he could do that under current law."
Dixon admits that it would require the administration "to think creatively or think boldly" about how to reduce the number, including an aggressive use of civil trials and guilty pleas.
But the White House insists that Obama would not have the authority even to accept a guilty plea without congressional approval. "Under current law a Guantanamo detainee can't plead guilty and serve a sentence in a USA Supermax prison," White House Chief of Staff Denis McDonough said Tuesday on Twitter. "Shouldn't Congress change that?"
"Some of these individuals will not be deemed safe for transfer and some of these individuals cannot be effectively prosecuted in our criminal justice system. And it means that these individuals would be subject to a Law of War detention," which allows them to be detained as long as hostilities in the war on terror remain, Earnest said.
And as long as there's just one Law of War detainee at Guantanamo, the prison must remain open, says David Rivkin, a former White House lawyer in the first Bush administration.
"Yes, he can transfer a number of detainees, but there is a finite number of detainees that even this administration would not want to transfer, including those now subject to military commissions," he said. "If he had two people to bring over, it would not be any less unconstitutional than if he had 20 people here."
That could leave Guantanamo Bay in the company of East Germany's notorious Spandau Prison, which housed a small number of Nazi war criminals and for six years existed only to keep captive a single prisoner, Rudolf Hess. That prison closed only when Hess committed suicide in 1987.
"Eventually Guantanamo will close, because everybody will die," Anders said.
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Detainees attend a class at Guantanamo Bay, Cuba, in this undated photo. President Barack Obama's plan to close Guantanamo Bay outright faces stiff political opposition from Congress. But the plan the president outlined Tuesday could all but empty out the military prison by the time he leaves office.
JOSHUA NISTAS/COURTESY U.S. NAVY