Recently, there was a brief flurry of media interest in Guantánamo after the New York Times published an article by Charlie Savage entitled, “Obama’s Plan for Guantánamo Is Seen Faltering.”
Savage noted how the Obama administration’s “fitful effort” to shut down the prison at Guantánamo “is collapsing again,” pointing out how, in his first six months as defense secretary, Ashton Carter “has yet to make a decision on any newly proposed deals to transfer individual detainees,” and claiming that, according to unnamed officials, this delay, “which echoes a pattern last year by his predecessor, Chuck Hagel,” is “generating mounting concern in the White House and State Department.” The most recent transfers out of Guantánamo — of six Yemenis resettled in Oman — were in June, but they were part of deal negotiated under Hagel, which saw four other Yemenis rehoused in Oman in January.
Savage wrote that, in mid-July, President Obama’s national security adviser, Susan Rice, “convened a cabinet-level ‘principals committee’ meeting on how to close the prison before the president leaves office in 18 months.” At that meeting, Carter “was presented with an unsigned National Security Council memo stating that he would have 30 days to make decisions on newly proposed transfers,” according to several officials familiar with the discussions.
However, the meeting apparently “ended inconclusively.” Carter “did not commit to making a decision on pending transfer proposals by a particular date, including the repatriation of a Mauritanian and a Moroccan” — mentioned as pending releases in a Washington Post article in April, which I discussed here — and Savage added that it was unclear whether Carter “accepted the 30-day deadline.”
Carter already has the most significant role in approving releases, because he has to sign assurances, submitted to Congress 30 days before any transfer, stating that any risks in releasing prisoners “have been substantially mitigated.” As Charlie Savage put it, “The law effectively vests final power in the defense secretary and makes him personally accountable if something goes wrong.”
With this in mind, it is increasingly worrying that Carter has not yet approved anyone for transfer out of Guantánamo, even though 52 of the remaining 116 prisoners have been approved for release — 44 in 2009-10 by President Obama’s high-level, inter-agency Guantánamo Review Task Force, and eight more by Periodic Review Boards in the last year and a half. 43 of these men are Yemenis, and as Charlie Savage noted, because Yemen “is in chaos, the American government is trying to resettle them, not repatriate them.”
Robert M. Chesney, a law professor at the University of Texas who worked on detainee policy for the Obama administration in 2009, told the Times, “The chances of getting it done on Obama’s watch are getting increasingly slim. Whatever hope there is depends on quick progress in transferring as many detainees as possible.” He added, however, that “there is still going to have to be a deal with Congress for the remainder for long-term custody in the United States.”
After noting that President Obama “has called closing Guantánamo a ‘national imperative,’ arguing that it fuels anti-American sentiment and wastes money,” Charlie Savage related how, in a written statement, Lisa Monaco, the president’s top counter-terrorism adviser, said that the president remained “steadfast in his commitment” to close Guantánamo.
Monaco wrote, “This is a goal that the entire national security team is working together to fulfill — from the White House to the Departments of Defense, State and Justice as well as the intelligence community.” She added, “The safety of Americans is our first priority, and each transfer decision involves careful vetting and negotiation of detailed security arrangements. These deliberations take time because these are important decisions.”
Officials told Savage that inter-agency tensions with Ashton Carter had “not reached the levels they did by last fall with Mr. Hagel, who eventually resigned under pressure.” He added that, towards the end of his time in the job, Hagel “cleared a backlog of proposed deals, leading to more than two dozen transfers between November and January,” including the ten Yemenis sent to Oman.
Lee Wolosky, the new State Department envoy for Guantánamo closure, said that the government “was talking with multiple countries about ‘the transfer of a large number of detainees’ from the list” of cleared prisoners awaiting release. He added, “This process will ramp up further in the coming weeks, as reducing the detainee population through foreign transfers is a critical component to our broader efforts to close the detention facility.”
However, Ashton Carter still has to approve any deals, as Charlie Savage pointed out. His deputy, Robert O. Work, said in a statement that the Pentagon would “continue to work with the national security team and the Congress to close the facility in an efficient and responsible manner.”
In his article, Savage also discussed the ongoing opposition to the closure of Guantánamo in Congress, noting how, in February, at Ashton Carter’s confirmation hearing, two Republican senators “asked him to commit that he would not succumb to pressure by the White House over Guantánamo transfers. Cater’s response? “I understand my responsibilities under that statute, and I’ll, as in everything else I do, I’ll play it absolutely straight,” he said.
Charlie Savage also noted how the House and Senate Armed Services Committees are currently “meeting to resolve differences between their versions of the annual National Defense Authorization Act, which includes the detainee transfer restrictions.” He explained that the House bill “would further tighten the standards, most likely shutting down any more transfers,” while the Senate version “would largely extend existing restrictions,” and he also noted that the White House “has threatened to veto both versions.” I discussed these discussions in an article in June, ‘The Path to Closing Guantánamo,” in which I also discussed an additional issue included in the Senate version — “a process, proposed by Senator John McCain of Arizona, the Republican chairman of the Armed Services Committee, for closing the prison: The administration would submit a plan to Congress, and if both chambers approve it, the ban on bringing the remaining detainees to domestic soil would be lifted.”
Charlie Savage noted how Ashton Carter and Lisa Monaco “have promised to give Mr. McCain a plan,” although he noted that it was expected to be similar to previous proposals — “to transfer all lower-level detainees, while bringing those deemed too dangerous for release to a military prison on domestic soil.” He added, “Of the latter group, some would be prosecuted while the rest would be held as wartime prisoners, with periodic parole-like reviews.”
Savage also noted that the plan “has previously failed to persuade skeptics of Mr. Obama’s Guantánamo policy, particularly in the House,” and a Republican congressional staff member told him that President Obama’s critics “also wanted to see, as part of the plan, discussion of how law-of-war detention would be used to hold and interrogate terrorism suspects captured in the future.” However, as Savage explained, “The administration has developed a model of first interrogating new captives for a period for intelligence purposes, often on a ship, and then transferring them to civilian courts for prosecution,” and “considers that model to be one of its policy achievements.”
The day after the New York Times article was published, the administration followed up. As Reuters put it, the White House said “it was in the final stage of drafting a plan for closing the Guantánamo prison.”
White House spokesman Josh Earnest said the administration “hoped to ‘short circuit’ opposition from Republicans in Congress who have blocked Obama from closing the prison. At a press briefing, Earnest said that the administration was “in the final stages of drafting a plan to safely, responsibly, the prison at Guantánamo and to present that plan to Congress.”
Time also covered the story, speaking to Daphne Eviatar of Human Rights First, who said the fact that the White House is working [on a] plan could be a good first step, but questions still remain as to whether or not Congress will be able to approve any plan given many members’ opposition to closing the prison,” as Time described it. As Eviatar said, “It’s still within the Administration’s power to do a lot to close the prison. [The White House] can’t keep blaming Congress, but Congress also needs to do more. It shouldn’t be this political football anymore.”
Christopher Anders, senior legislative counsel at the ACLU, also spoke to Time. He said that the plan being sent to Congress would “constitute no more than an ‘irrelevant checking of the box,’” and added that President Obama “already has the executive authority to make detainee transfers happen without Congress.”
As Anders put it, “It’s not much different than plans that have already been sent and it’s not going to convince Congress to change its mind. Obama should tell the Secretary of Defense to approve the transfer of cleared detainees.”
Anders added that the lack of prisoner releases was the “number one obstacle” facing the president and that the Pentagon was “digging in its heels” on closing the prison.
In conclusion, it is difficult to see quite what the flurry of media activity signified. It is certainly to be hoped that the administration, with Sen. McCain, can come up with a plan that might be used to persuade Congress to allow the president to fulfil his promise to close Guantánamo before he leaves office, but it is impossible to say with a straight face, and with any optimism, that this can or will happen.
However, what can and should happen is the release of as many as possible of the 52 men already approved for transfer, including Shaker Aamer, the last British resident in the prison, and other men mentioned in April — the Mauritanian Ahmed Ould Abdel Aziz and the Moroccan Younus Chekhouri.
Ashton Carter should approve these men’s transfer as soon as possible.
To encourage defense secretary Carter, please feel free to call the Pentagon on 703-571-3343 to leave him a message.