Two days after he was sworn in as president, Obama signed an executive order for a review of the cases of all detainees.
US President Barack Obama is once again promising to fulfill his years-late pledge to close the prison at Guantanamo Bay, saying he is “very clear-eyed about the hurdles” involved.
The politics are tough, Obama acknowledged on Tuesday as he presented his proposal. “If it were easy, it would have happened years ago,” he added.
The plan to “close Guantanamo” – which the Department of Defence calls a “national security imperative” – has four main points.
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First, men who are eligible to be released – 35 to date – are expected to be transferred out in the coming months.
Second, the parole style hearings will continue for prisoners who have not been cleared but who have also not been charged with a crime.
Third, the US will work to identify “individual dispositions for those who remain designated for continued law of war detention”.
Finally – and most controversially – the Obama administration will work with Congress to find a location on the mainland to hold prisoners the US says cannot be transferred to another country, or who are subject to military commission proceedings.
There are 13 potential sites on US soil where prisoners may be transferred, however no specific location has been endorsed.
To house an estimated 30 to 60 prisoners in the mainland US is estimated to be $65 million to $85 million cheaper than in the prison on the naval base in Cuba.
The one-time transition costs of moving the men would be offset in three to five years by the lower operating costs of a US facility, an official told reporters during a Tuesday morning conference call.
An estimated 20-year-saving would be up to $1.7bn, according to the US Defense Department.
Senator John McCain, a Republican from Arizona and chairman of the Senate Armed Services Committee, said in a statement: “What we received today is a vague menu of options, not a credible plan for closing Guantanamo, let alone a coherent policy to deal with future terrorist detainees”.
Currently 91 men remain in the prison with some 2,000 troops and civilians staffed to oversee them. The cost per prisoner is now estimated at $4.4m a year.
Before Obama’s plan was even public, Republican US Senators Pat Roberts of Kansas, Tim Scott of South Carolina and Cory Gardner of Colorado voiced opposition to any notion that prisoners would be sent to the mainland US – “regardless of whether it is Kansas, South Carolina, or Colorado, none of these options are acceptable”, they stated.
“Our states and our communities remain opposed to moving the world’s deadliest terrorists to US soil. The terrorists at Guantanamo Bay are where they should remain – at Guantanamo Bay.”
Relocating prisoners from Guantanamo Bay to the United States, while maintaining indefinite detention, is also an idea that is unacceptable to many of the Guantanamo prisoners and their lawyers.
“The centrepiece of the plan – moving those detainees who have not been and will never be charged with any crime to a prison in the US – does not ‘close Guantanamo’ it merely relocates it to a new ZIP Code,” the Center for Constitutional Rights said in a statement.
The centerpiece of the plan - moving those detainees who have not been and will never be charged with any crime to a prison in the US - does not 'close Guantanamo' it merely relocates it to a new ZIP Code.
“The infamy of Guantanamo has never been just its location, but rather its immoral and illegal regime of indefinite detention. Closing Guantanamo in any meaningful sense means putting an end to that practice.”
Out of the 91 detainees, 46 of them have neither been charged with a crime, nor have they been cleared for transfer – these men are often referred to as the “forever prisoners”.
Another one of these “forever prisoners” was just crossed off that Guantanamo list – casting yet again more doubts about the validity of the classification.
Late last week, a parole style board recommended that Yemeni Majid Mahmud Abdu Ahmed be transferred. He is the 18th prisoner out of 21 cases heard to conclusion who have won their cases in front of the US government inter-agency Periodic Review Board (PRB). The rulings have favoured the prisoners 86 percent of the time.
In a post entitled, “Closing Guantanamo, Episode XXVIII: This Time, We Really, Really (Really!) Mean It”, Steve Vladeck writes that the “success rate is stunning”.
The “decisions demonstrate that the distinction between cleared and un-cleared no longer has any validity. Most of the men there, judging by the rate of approval, are in fact not too dangerous to release,” said Ahmed’s attorney David Remes.
Ahmed’s case is not extraordinary.
He was a member of a group of men dubbed the “Dirty Thirty”, who were accused – many would say falsely – of being Osama bin Laden’s bodyguards.
They were a group of 30 Arab men who trekked across the Afghanistan-Pakistan border and were captured by Pakistanis.
But in fact most of the “Dirty Thirty” have already been transferred out of the prison, or cleared for release. “It’s not a real group, it’s a group for the Pentagon’s propaganda purposes,” said Remes, who represents 12 men in the prison.
“If you believe the charge sheets that all these men were Osama bin Laden bodyguards, it would be a number that the Secret Service could only envy.”
A handful of other prisoners will have hearings soon.
As the Centre for Constitutional Rights has also pointed out, Obama could get around the ban of prisoner transfers to the US by negotiating guilty pleas with some detainees giving the courts a chance to “rule that the existing transfer restrictions were not intended by Congress to apply to such cases”.
The repatriation and resettlement of the 35 cleared prisoners are not expected to be without blemishes either. Most recently, Yemeni Mohammed Bwazir refused to board a departing plane, opting instead to stay in Guantanamo than to live in a country where he had no family.
In another case, Moroccan Younis Chekkouri, who was sent home, was detained for some time in Sale prison, near Rabat – despite reported assurances that he would not be.
While out of prison, he is not yet a free man; he has a hearing scheduled for Tuesday to see if he will face charges back home.
Ten men are in various stages of Military Commissions hearings. The September 11 pre-trial ones tick on.
Fourteen years later, the five accused men have yet to enter pleas with proceedings recently focusing on retroactively censored open-court testimony and screenings of torture scenes from the film Zero Dark Thirty.
There is a separate hearing in the DC Circuit that challenges the Military Commissions right to hear another case: al-Nashiri vs Obama.
It’s a pre-trial challenge questioning the authority of the commissions to try offenses that came before the September 11 attacks, like the USS Cole Boles in 2000, in which Abd al-Rahim Hussein al-Nashiri is the accused mastermind.
Someone who “lawfully” worked to track and capture some of the alleged “terrorists” now in front of the Military Commissions said that the proceedings were good-intentioned and a “viable way ahead” in the immediate period after the September 11 attacks.
However, “in practice it’s self-evident it’s been a disaster” that has “politically – both domestically and internationally …been under attack from its inception”, conceded the person who agreed to comment as long as not named.
Yet, the federal criminal courts “have an excellent – even remarkable record – in successfully trying complex international and domestic terrorism conspiracies”, the person added.
“I have no doubt the US courts – if the political will is there – can successfully hear the most significant Guantanamo cases.”
Time will tell if there is a will and a way.
“Given the stakes involved for our security, this plan deserves a fair hearing – even in an election year,” Obama said on Tuesday morning.
“Let us do what is right is for America. Let us going ahead and close this chapter…I am absolutely committed to closing the detention facility at Guantanamo.”
Follow Jenifer Fenton on Twitter: @jeniferfenton