In the long and shameful 20-year history of the prison at Guantánamo Bay, obstacles to the prison’s closure — and to the conditions in which prisoners are held — have been raised persistently, since 2010, after President Obama lost control of Congress in the mid-term elections, by Republican lawmakers, in the annual National Defense Authorization Act (NDAA). This year, as in previous years, concerned Democrats are hoping to overturn these provisions, and below I’m posting a letter they wrote recently to the House and Senate Armed Services Committees, but before I get to that it’s worthwhile looking back at the long history of these Congressional obstacles.
In December 2010, when Congress passed the NDAA for 2011, it included, for the first time, three provisions regarding Guantánamo that represented an unacceptable intrusion on the president’s authority: firstly, a ban on the use of funds to bring any Guantánamo prisoners to the US mainland for any reasons, even to face trials; secondly, a ban on the use of funds to purchase or construct any facility on the US mainland for housing prisoners held, at the time, at Guantánamo; and, thirdly, a requirement that, before any prisoner is released, the defense secretary must sign off on the safety of doing so.
The first of these provisions was specifically aimed at derailing the Obama administration’s proposals to try Khalid Shiekh Mohammed (KSM) and the other men accused of involvement in the 9/11 attacks on the US mainland in federal court (and, just to make it clear, it mentioned KSM by name), while the second was designed to prevent the closure of Guantánamo by derailing the administration’s efforts to buy the empty Thomson Correctional Center in Illinois to transfer men from Guantánamo so that the prison could be closed. The third provision, meanwhile, was meant to make the release of prisoners unpalatable, as any post-release problems would become the responsibility of the defense secretary.
At the time, the provision banning Guantánamo prisoners from being tried on the US mainland was criticized not just by Democrats, but also by David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H. W. Bush, who wrote, in the Wall Street Journal, that “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.” Calling it “a step too far,” they added, “The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress’s wishes rather than his own violates the Constitution’s separation of powers.”
The Republicans’ interventions succeeded in getting the administration to stop the proposed 9/11 trial in New York, and also to abandon plans to buy a prison on the US mainland, but, emboldened, Republicans have proceeded, every year since, to maintain the ban on bringing Guantánamo prisoners to the US mainland for any reason, and on buying or modifying a prison on the US mainland, as well as maintaining the requirement for the defense secretary to sign off on releases, prohibiting the release of prisoners to a number of proscribed countries, and also demanding 30 days’ notice before any release.
Because of their powerlessness in Congress from 2010 to 2018, concerned Democrats were unable to effectively challenge these provisions until they regained the House in the mid-term elections in November 2018. In 2019, the House Armed Services Committee, under its new Democratic chair, Rep. Adam Smith, sought to amend the provisions by, as Just Security explained, “revert[ing] to the Bush-era policy of leaving maximum flexibility for the Commander in Chief by imposing no restrictions on transfers to the United States,” although it left intact “the onerous certification process for foreign transfers,” and also “retain[ed] a ban on the transfer of detainees to Libya, Somalia, Syria, and Yemen.”
The Committee was particularly concerned that the ban on bringing any prisoner to the US mainland for any reason was hampering “the ability of the US government to meet its obligation to provide adequate medical care to detainees at Guantánamo given the limited medical facilities at the isolated military base, the logistical challenges of providing care on base, and the increased costs of providing care there — all of which will be exacerbated as the detainee population ages.”
However, although the Senate’s draft bill also authorized the temporary transfer of prisoners to the US mainland “for emergency or critical medical treatment,” even that provision didn’t survive the bill’s final consolidation between the House and the Senate.
Similar efforts were thwarted in 2020, and, despite the election of Joe Biden as president in November 2020, the situation in Congress still hasn’t fundamentally changed. Democrats still hold the House, but Republicans in the fractured Senate (of 50 Republicans, 48 Democrats and two independents) still hold sway, and last year all the long-standing Guantánamo provisions survived yet again, for the 12th year running.
On May 26 this year, 69 members of Congress — 14 Senators and 55 Representatives, including many amongst the 99 lawmakers who called on President Biden to close Guantánamo last year, and to release everyone not charged with a crime — once more embarked on the seemingly interminable struggle to amend the NDAA’s Guantánamo provisions, writing a letter to Rep. Adam Smith and Sen. Jack Reed, the Chairs of the House and Senate Armed Services Committee, and the Republican Ranking Members, Rep. Mike Rogers and Sen. James Inhofe, calling for the provision prohibiting the transfer of prisoners to the United States to be dropped, and also calling for the Committees to “assess the existing restrictions and certification requirements that limit the Administration’s ability to transfer detainees abroad and to eliminate any bureaucratic obstacles to foreign transfers that do not serve a compelling national security purpose.”
The full letter is posted below, and I hope that you have time to read it, and that you’ll share it if you find it useful.
The Senators’ and Representatives’ Letter to the Senate and House Armed Services Committees regarding Guantánamo and the NDAA, May 26, 2022
The Honorable Adam Smith, Chairman, House Armed Services Committee
The Honorable Jack Reed, Chairman, Senate Armed Services Committee
The Honorable Mike Rogers, Ranking Member, House Armed Services Committee
The Honorable James Inhofe, Ranking Member, Senate Armed Services Committee
Dear Chairman Smith, Chairman Reed, Ranking Member Rogers, and Ranking Member Inhofe,
Last year, 99 Members of Congress — many of us among them — wrote to President Biden urging him to close the prison at Guantánamo Bay, Cuba once and for all. Since that time, the Administration has made tangible progress toward that end: three detainees have been repatriated; 20 more are approved or otherwise positioned for transfer; and, according to press reports, the Administration is seeking to resolve the remaining, perpetually stalled military commission cases through plea agreements.
As the House and Senate Armed Services Committees draft the National Defense Authorization Act (NDAA) for Fiscal Year 2023 (FY23), we strongly urge you to eliminate annual provisions in the bill that narrow or unnecessarily encumber the Administration’s options for closing Guantánamo. Among these provisions are Sections 1033 and 1034 of the FY22 NDAA, which prohibit the transfer of detainees to the United States.
These restrictions serve no national security purpose. The U.S. has a long track record of safely incarcerating individuals convicted on terrorism-related charges. According to James Gondles, Executive Director of the American Correctional Association, “there is no evidence that housing Guantánamo detainees would bring additional attacks, attention, or danger to the United States.”
Thanks to the leadership of the House Armed Services Committee, the House of Representatives has voted to repeal these restrictions for three consecutive years. The Committee reported NDAA bills for FY20, FY21, and FY22 that would have eliminated the ban on transferring detainees to the U.S., and each of these bills passed the House, at times with broad bipartisan support.
Unfortunately, NDAA Conference Committees have not adopted the House’s position and instead have produced legislation that extends these unnecessary restrictions.
We also urge the Committees to assess the existing restrictions and certification requirements that limit the Administration’s ability to transfer detainees abroad and to eliminate any bureaucratic obstacles to foreign transfers that do not serve a compelling national security purpose. Because most of the remaining detainees have already been approved for transfer by the relevant national security and intelligence agencies, lifting unnecessary barriers to these transfers is critical to expediting the closure of Guantánamo Bay.
With an astronomical cost of $500 million annually, the indefinite detention of prisoners at Guantánamo Bay without charges or trials violates our Constitution, betrays our values, and undermines America’s credibility as an advocate for democratic values and the rule of law abroad. Earlier this year, the Chinese government publicly invoked Guantánamo Bay in its anti-U.S. propaganda to deflect criticism of its own human rights abuses. Vladimir Putin recently did the same. We simply cannot allow authoritarian adversaries to continue wielding Guantánamo Bay as a propaganda tool to justify their brutal repression.
As this year’s NDAA process moves forward, we strongly urge the House and Senate Armed Services Committees to ensure that the final NDAA for FY23 lifts the ban on transferring Guantánamo detainees to the U.S. and eliminates unnecessary bureaucratic obstacles to transferring detainees abroad. At a time when American global leadership is desperately needed to stem the rising tide of authoritarianism, it is vital that we close Guantánamo Bay once and for all.
Richard J. Durbin, United States Senator
Dianne Feinstein, United States Senator
Benjamin L. Cardin, United States Senator
Thomas R. Carper, United States Senator
Edward J. Markey, United States Senator
Patty Murray, United States Senator
Kirsten Gillibrand, United States Senator
Brian Schatz, United States Senator
Elizabeth Warren, United States Senator
Amy Klobuchar, United States Senator
Ron Wyden, United States Senator
Patrick Leahy, United States Senator
Mazie K. Hirono, United States Senator
Cory A. Booker, United States Senator
Anna G. Eshoo, Member of Congress
Jerrold Nadler, Member of Congress
Adam B. Schiff, Member of Congress
Carolyn B. Maloney, Member of Congress
Barbara Lee, Member of Congress
Henry C. “Hank” Johnson, Jr., Member of Congress
Jan Schakowsky, Member of Congress
Adriano Espaillat, Member of Congress
Eleanor Holmes Norton, Member of Congress
Mark Pocan, Member of Congress
Alexandria Ocasio-Cortez, Member of Congress
Dina Titus, Member of Congress
Jesús G. “Chuy” García, Member of Congress
Earl Blumenauer, Member of Congress
James P. McGovern, Member of Congress
Yvette D. Clarke, Member of Congress
Ilhan Omar, Member of Congress
Raúl M. Grijalva, Member of Congress
Jamaal Bowman, Ed.D., Member of Congress
Rashida Tlaib, Member of Congress
Ayanna Pressley, Member of Congress
Andy Levin, Member of Congress
James A. Himes, Member of Congress
Bobby L. Rush, Member of Congress
David E. Price, Member of Congress
Dwight Evans, Member of Congress
Peter A. DeFazio, Member of Congress
Jerry McNerney, Member of Congress
Jared Huffman, Member of Congress
Steve Cohen, Member of Congress
Alan Lowenthal, Member of Congress
Sheila Cherfilus-McCormick, Member of Congress
Veronica Escobar, Member of Congress
Karen Bass, Member of Congress
Jamie Raskin, Member of Congress
Ro Khanna, Member of Congress
Gerald E. Connolly, Member of Congress
Cori Bush, Member of Congress
Mikie Sherrill, Member of Congress
Mark Takano, Member of Congress
Peter Welch, Member of Congress
Donald S. Beyer Jr., Member of Congress
John Yarmuth, Member of Congress
Rosa L. DeLauro, Member of Congress
Pramila Jayapal, Member of Congress
Eric Swalwell, Member of Congress
David N. Cicilline, Member of Congress
Judy Chu, Member of Congress
Katherine M. Clark, Member of Congress
Mondaire Jones, Member of Congress
Mike Quigley, Member of Congress
Betty McCollum, Member of Congress
André Carson, Member of Congress
Suzanne Bonamici, Member of Congress
Alma S. Adams, Ph.D., Member of Congress