Guantánamo 55

As President Obama’s first term wore on, a signature plank of his 2008 campaign – his pledge to close Guantánamo – went from policy pillar to policy pariah. The political and popular hurdles to closure – legislation, funding restrictions, outcry in some quarters over terrorist trials – multiplied. The President’s bold act on his first day of office -- an executive order requiring closure of the detention center within the year -- gave way to the ratification of military commissions as an alternative to trials in federal courts, detention without charge was embraced, and transfers from the facility slowed to a trickle.  

After going mum on the topic for most of his 2012 campaign, Obama finally renewed his pledge to close Guantánamo during an appearance on the Daily Show with Jon Stewart show in late October. This pledge will be put to the test even before his second term begins. The reauthorization of the National Defense Authorization Act, soon due for a final vote in Congress, will either offer the president more leeway to restart the machinery of Guantánamo closure, or offer another excuse to maintain the current paralysis. If the president’s campaign pledge means more this time around than it did in 2008, he must use the mandate he won in early November to veto this year’s NDAA if it hinders progress on Guantánamo.

Like a hard calculus equation, the conundrum of what to do with the 166 detainees still housed at Guantánamo is best addressed by breaking the problem into parts and solving them one by one. The obvious starting point is the 55 Guantánamo detainees who the administration named this September as cleared for transfer. Many of these men have been held in the facility for a decade or more where there are no grounds for continued detention. These are the relatively easy cases, men who the administration has no intent to charge with any crime. While the details of many of the cases remain secret, some Guantánamo experts assert that many if not all of these men may be cleared for release entirely, meaning that they are entitled to their freedom yet remain captive.

One well-known example in this group is Shaker Amer. He is a U.K. citizen, and the British government has repeatedly requested his transfer to be reunited with his wife and children in London. He remains held without charge. He said back in November 2005 that, "I am dying here every day, mentally and physically... We have been ignored, locked up in the middle of the ocean for four years."

Three elements are critical right now to advance the transfer of the Guantánamo 55 and help close Guantánamo.

First of all, the NDAA conferees must lift — and not make permanent--the blanket prohibition on detainee transfers to the United States, a ban that applies even to detainees who would be brought to the U.S. mainland for prosecution. Eleven years after 9/11, with the flaws of the Guantánamo justice system now documented in endless books and reports, the categorical rejection of resettlement for detainees within the United States is unfair and unwarranted. It also poses an obstacle to getting other countries to resettle more Guantánamo detainees. Detainees who have been cleared should not be foreclosed from a future in the United States. Resettlement of even a handful of detainees within U.S. borders would provide powerful leverage to secure placements abroad for dozens of others.

This year’s NDAA must also lift impediments to transferring detainees to other countries. While diligent efforts to prevent recidivism are perfectly appropriate, so far the current NDAA conditions on transfer of detainees to suitable other countries appear to have been used primarily as an excuse for inaction. For example, Shaker Aamer has been cleared for transfer to the UK, which appears to meet the transfer requirements and wants him released, and yet he remains held -- why? If the current transfer conditions to other countries remain, then the administration must work within them to transfer cleared detainees out.

President Obama must throw his weight and prestige behind renewed efforts to transfer the Guantánamo 55. He should appoint a member of his senior staff to focus on unclogging the pipeline of Guantánamo transfers. The White House has the power and authority to clear hurdles that cut across the Justice Department, Department of State, Pentagon and Intelligence agencies. And it will only happen if the effort gains adequate, sustained attention.

As monumental as it would be, resolving the cases of the Guantánamo 55 would still leave more than 100 men unlawfully detained at Guantánamo. But there is no excuse for not starting somewhere.

Nossel is executive director Amnesty International USA.

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