The Senate yesterday approved the 2016 National Defense Authorization Act (2016 NDAA), the annual defense budget bill. This year’s bill includes harsh restrictions on transferring Guantanamo Bay detainees.
Congress has put up similar roadblocks in the past, but this year the limitations would ensure that President Obama could not close the prison. Not only is closing Gitmo a legacy issue for the president; it’s also an action that national security leaders call essential. President George W. Bush also backed closure. If Obama wants to make good on his oft-made promise to shut down the prison, he has no choice but to veto the NDAA and renegotiate the Guantanamo provisions with Congress.
There are already significant limits on transferring Guantanamo detainees, but they allow the president to release detainees who have been cleared by an interagency process (which includes the CIA, FBI, State Department, Defense Department, and Homeland Security Department) after the transfer has been approved by the Secretary of Defense. The Defense Department must also provide Congress with a 30-day notice before any transfer.
But any transfer to the United States—even for imprisonment, trial, or emergency medical treatment—is prohibited. If this blanket restriction remained in the NDAA, it would make closure all but impossible.
The new defense authorization bill includes unprecedented and counterproductive transfer bans to certain countries, and a return to previous certification requirements that would make overseas transfers more difficult, even for the more than 50 detainees cleared for release. It would also extend the ban on transfers to the United States until December 31, 2016.
While about half of the detainees have been cleared for transfer, there are some slated for indefinite detention whom the administration seeks to bring to either federal or military prisons in the United States. The new provisions would scuttle these plans. Those detainees would remain indefinitely detained in Guantanamo, even though prison officials have testified that U.S. prisons could handle them without problem. A Government Accountability Office report agrees.
If enacted into law, the 2016 NDAA would prevent Obama from closing Guantanamo by the end of his second term. White House Press Secretary Josh Earnest has said that the president would veto the bill if it did not include a pathway to closing the prison. Obama needs to come out forcefully against the new Guantanamo restrictions, and make clear that he intends to veto the NDAA because of them. He must then make good on that promise and renegotiate the Guantanamo provisions with Congress.
Obama has blamed Congress for his inability to close the prison, but he neglects to take responsibility for the slow trickle of detainee releases and frustratingly sluggish rate of detainee review hearings.
Now with the new NDAA, Congress is acting to cut off the few options President Obama has left to close the prison. Without a strong veto threat, making clear that the Guantanamo provisions are unacceptable, the new restrictions will likely become law and the president will ensure that his goal of closing the prison goes unfulfilled.
Jacobson is a researcher at Human Rights First.