For the last three years, the release of detainees from Guantanamo has remained at a standstill. Congress and President Obama share responsibility for the current situation. Congress has continued to impose severe restrictions on the transfer of detainees from Guantanamo to other countries and a flat ban on the transfer of detainees to the United States; and the president has failed to exercise the latitude he still retains to release prisoners notwithstanding the legislative restrictions.
Recent developments, however, have provided a glimmer of hope that the inter-branch logjam may be loosening. Mounting concerns about the hunger strikes that have swept through Guantanamo – and the military’s use of forced feeding to prevent prisoners from starving to death – have forced President Obama’s hand.
In April, Obama renewed his pledge to close the detention center, declaring that it was “not sustainable”. Obama subsequently lifted his ban on the transfer of detainees to Yemen – home to more than half of the remaining 166 Guantanamo prisoners – and appointed a special envoy at the State Department to coordinate closing the prison.
There are signs of movement in Congress as well. Previously, Congress has used annual defence spending bills to erect obstacles to releasing detainees and closing the prison. Last week, however, the Senate Armed Service Committee approved a bill – the National Defense Authorization Act for 2014 (2014 NDAA) – that could significantly alter the status quo.
The bill would loosen existing certification requirements that have hindered the transfer of detainees from Guantanamo to other countries. In place of the long list of security conditions now in place, the Secretary of Defense would only need to find that steps have been taken to substantially mitigate the risk that a released detainee would engage in hostilities and that the detainee’s transfer was in the national security interest.
[The Senate’s 2014 NDAA ] seems designed to avert the administration’s worst fear – the storm of negative publicity from any more prisoner deaths at Guantanamo.
The Senate bill would also eliminate the current bar on the transfer of Guantanamo detainees to the United States, allowing prisoners to be brought to the US either for continued detention or trial. Another provision would permit the temporary transfer of detainees to the United States to receive emergency or critical medical treatment at a Defense Department facility.
This provision suggests that Guantanamo is ill-equipped to handle serious medical issues resulting from the current hunger strike. Regrettably, the bill still would not allow for the release of detainees into the United States, even following a determination that they pose no security threat.
The bill, to be sure, has a long way to go. It has yet to reach the Senate floor, where it is likely to face resistance. The House version of the 2014 NDAA, moreover, contains the same restrictions as the current NDAA. And an amendment to the new House bill by Representative Adam Smith that would have ended indefinite detention at Guantanamo failed to pass.
It is thus uncertain which, if any, of the changes from the Senate bill will stick. Some of those changes – such as allowing for the temporary transfer of prisoners to the US for emergency or critical medical treatment – would do nothing to alter the underlying problem of prolonged detention without trial. (Detainees would be sent back to Guantanamo once treated).
This measure instead seems designed to avert the administration’s worst fear – the storm of negative publicity from any more prisoner deaths at Guantanamo. That said, this year’s defence authorisation process suggests there is considerably more political momentum for easing restrictions than in the past.
Ultimately, changing circumstances beyond the Beltway will place increasing pressure on the government to act. Guantanamo is premised on the rationale that enemy fighters may be detained for the duration of a war. The US maintains that Guantanamo detainees are being held in a war against al-Qaeda and associated forces.
This argument, however, is growing more tenuous. US involvement in Afghanistan – the one place where the US clearly is at war – is winding down, with US forces expected to withdraw at the end of next year. Moreover, in his recent speech at the National Defense University, President Obama noted that al-Qaeda had been reduced to a “shell of its former self” and emphasised that bringing the war on terror to a close was in the United States’ strategic interest.
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The justification for Guantanamo will continue to evaporate as the notion that the United States is at war with al-Qaeda grows more tenuous. It will be increasingly difficult for the United States to continue defending detentions at Guantanamo when the armed conflict that has provided the basis for those detentions no longer exists.
For now, though, the war on terrorism continues. Furthermore, the government will be reluctant to surrender the broad authority the war paradigm provides not merely to detain terrorism suspects without trial, but also to engage in lethal drone strikes and similar activities. Indeed, while Guantanamo may still be the most visible and well-known symbol of the war on terrorism, it is only a small part of overall US counter-terrorism operations.
Perhaps Obama’s renewed call to action and the Senate bill will lead to change sooner rather than later. Either way, the catalyst for the renewed focus on Guantanamo was not the moral compass of the president or lawmakers but rather the actions of the Guantanamo detainees themselves.
By demonstrating to the world that they would rather die by starvation than continue languishing in hopelessness and despair, the detainees jump-started the closure process that had begun following Obama’s election in 2008 – only to be derailed by political opposition, public backlash, and a lack of commitment on the part of the president himself.
Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.
Follow him on Twitter: @JonathanHafetz