Last week, for only the fifth time in his Presidency, Barack Obama vetoed a bill sent for his approval by Congress. The bill in question was the draft of next year’s National Defense Authorization Act, which provides funding for the military, but which, for several years now, has also been used by Republicans to impose restrictions on the president’s ability to release prisoners from Guantánamo — as well as an absolute ban on bringing any prisoner to the US mainland for any reason.
In a Veto Message on October 22, President Obama wrote, “I am returning herewith without my approval H.R. 1735, the ‘National Defense Authorization Act for Fiscal Year 2016.’” He added that “the bill would, among other things, constrain the ability of the Department of Defense to conduct multi-year defense planning and align military capabilities and force structure with our national defense strategy, impede the closure of the detention facility at Guantánamo Bay, and prevent the implementation of essential defense reforms.”
On Guantánamo, President Obama wrote, in further detail:
I have repeatedly called upon the Congress to work with my Administration to close the detention facility at Guantánamo Bay, Cuba, and explained why it is imperative that we do so. As I have noted, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists. Yet in addition to failing to remove unwarranted restrictions on the transfer of detainees, this bill seeks to impose more onerous ones. The executive branch must have the flexibility, with regard to those detainees who remain at Guantánamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Rather than taking steps to bring this chapter of our history to a close, as I have repeatedly called upon the Congress to do, this bill aims to extend it.
For many years, Congress has imposed restrictions on President Obama that have made it more difficult to release prisoners and to take steps towards closing the prison, as he promised on his second day in office in January 2009. For several years, it should also be noted, President Obama has had access to a waiver provision in the legislation, which has allowed him to bypass Congress when it comes to provisions relating to Guantánamo, but he has chosen not to use it. We understand that this is for political reasons. It is clear that the president has decided that it is not worth spending political capital on Guantánamo and enraging Republicans — but it remains a disappointment that he has not once used his waiver.
Instead, he has allowed his hands to be tied by lawmakers, who have imposed a ban on any prisoner being brought to the US mainland for any reason, and have required the defense secretary to certify that, if a prisoner is to be released, steps have been taken to mitigate any risk. They have also imposed a 30-day notification period before any prisoner can be released, and, over the years, bans on repatriations to certain countries regarded as dangerous.
From September 2010 to August 2013, the restrictions were so onerous that only five prisoners were released from Guantánamo. In May 2013, after the prisoners, in despair at ever being released or securing anything resembling justice, embarked on a prison-wide hunger strike that drew unwelcome international attention to Guantánamo, President Obama promised to resume releasing prisoners. Since that time, 52 men have been freed, which is a huge improvement on the distressing situation that existed from 2010-13.
However, every year the NDAA contains restrictions that are extremely unhelpful to President Obama’s intention to close Guantánamo — particularly because of the ban on bringing any prisoner to the US mainland — and every year he has threatened to veto it, although he hasn’t done so until now.
The differences between this year and previous years are two-fold, relating both to immediate concerns and to the bigger plan of closing Guantánamo before President Obama leaves office.
On the first of these two points, this year’s bill spitefully includes increased restrictions that are not justifiable. As well as maintaining the ban on bringing Guantánamo prisoners to the US mainland, it “would also make it slightly more difficult to transfer detainees to foreign countries by requiring Defense Secretary Ash Carter to certify that the transfer is in the interest of national security,” as The Hill described it. In addition, as well as maintaining a ban on transferring any prisoner to Yemen, it would add bans on any transfers to Syria, Libya and Somalia.
The entire US establishment is unwilling to repatriate any Yemenis, but the majority of the prisoners approved for release — currently, 43 of the 54 men approved for release — are Yemenis. Since 2013, the Obama administration has been finding third countries to take these men instead, and 18 Yemenis have been given new homes, in Europe, Asia and the Gulf. The ban on Yemen is therefore of little or no concern to the administration — although we believe it is unacceptable to impose a blanket ban on an entire country because of security concerns — but the proposed ban on Syria, Libya and Somalia would unjustifiably extend the notion that a prisoner’s nationality is more significant than a decision, by a high-level, inter-agency US government review process, that they do not pose a threat to the US.
In a letter to Representatives on September 30, 14 NGOs, including the American Civil Liberties Union, Amnesty International USA, the Center for Constitutional Rights, Human Rights First and Human Rights Watch, stated that the bill “would impose the most comprehensive set of obstacles to closing Guantánamo that have ever been included in a conference bill.” Their take on the passage imposing foreign transfer restrictions was that it “effectively reinstates … a series of restrictive overseas transfer requirements that a bipartisan majority of Congress rejected and replaced in the NDAA for FY 2014 and FY 2015.”
They added, “The core foreign transfer section … does not have any explicit time restriction, raising the question of whether those transfer restrictions would become permanent.” After also noting the new country-specific prohibitions, the NGOs added that the bill “includes certain reporting requirements that could impede the willingness of foreign countries to accept detainees for resettlement.”
On the second point, relating to President Obama’s plan to close Guantánamo before leaving office, it is clear that, with just 15 months left of his Presidency, this is, realistically, his last chance to close the prison — or, rather, to do so via some sort of arrangement with Congress, rather than, say, by an executive order sometime next year.
When Sen. John McCain, the chair of the Senate Armed Services Committee, mentioned that the ban on bringing prisoners to the US mainland was being extended for another year, he made a point of stating, specifically, “If the administration complains about the provisions concerning Guantánamo, then it’s their fault because they never came forward with a plan that we could have probably supported.”
That plan has been discussed for months, and has involved the administration suggesting prisons — military or otherwise — that could be used to hold prisoners pending trials, or, in the short-term, to continue to be held without charge or trial. However, after meeting opposition to every proposal, the administration has yet to submit a detailed plan to Congress.
Personally, I think it was unwise for the administration to publicly discuss potential prison sites, knowing that there would be loud opposition from lawmakers and local officials. However, the planned closure of Guantánamo is clearly a difficult issue. As well as having to locate a facility — or facilities — that can be used, the administration has to contend with NGOs and lawyers who are adamant that no prisoner can be brought to the US mainland to be held without charge or trial.
Here at “Close Guantánamo,” we have a different take on this problem, believing that the Constitution and US laws do not allow the type of indefinite detention without charge or trial that has existed for nearly 14 years at Guantánamo, and further believing that, if a few dozen men are moved from Guantánamo to the mainland, any attempt to continue holding any of them without putting them on trial will be met with new legal challenges that will not end up with rulings that are favorable to the government.
We believe, in short, that although the Supreme Court rulings in Rasul v. Bush (2004) and Boumediene v. Bush (2008) granted habeas corpus rights to the Guantanamo prisoners, the prison remained — and remains — US soil to a lesser degree than the US mainland, where legal protections against indefinite detention without charge or trial are considerably stronger.
In conclusion, we agree with the NGOs that the version of the NDAA presented to President Obama by Congress appears to offer a gesture of conciliation on the one hand while taking it away with the other. As the NGOs stated in the conclusion of their letter to Representatives, “While the conference report does provide for the president to submit a plan to close Guantánamo, the bill’s restrictions effectively thwart closure efforts.”
Now that President Obama has taken the step to issue a veto, we look forward to hearing that lawmakers will respond in a responsible and dignified manner, and will, as the president urged in his Veto Notice, work with him to close Guantánamo, and not against him, to keep it open. The prison needs to be permanently closed by the time President Obama leaves office, not just for his legacy, but also because every day it remains open is a blot on the US’s claim to be a nation that respects the rule of law.
I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.