By Andy Worthington, December 30, 2015
A week before Christmas, at a press conference, President Obama spoke about Guantánamo, and we wanted to make sure that our supporters know exactly what he said, as it is significant for the coming year -- Obama's last in office -- to know what he has planned, and what he thinks of the opposition to his plans in Congress, where Republicans have been imposing restrictions on his ability to release prisoners and to close the prison for most of his presidency, including a ban on bringing prisoners to the U.S. mainland for any reason.
Below are President Obama's comments, interspersed with our commentary. We hope you find it useful. The president's comments came in response to a question by the journalist David Jackson.
David Jackson: Thank you, Mr. President. A Gitmo question. Congress has made it pretty clear that they’re just not going to let you transfer prisoners to the United States for trial. But some people think you already have the executive authority to transfer those prisoners and close Gitmo itself next year. My question is, do you believe you have that authority and are you willing to exercise it to close that place?
The President: Well, first of all, we’ve been working systematically -- another example of persistence -- in reducing the population. We have a review process. Those who are eligible for transfer we locate in countries that have accepted some of these detainees. They monitor them, and it’s been determined that they can be transferred. And my expectation is by early next year, we should have reduced that population below 100. And we will continue to steadily chip away at the numbers in Guantánamo.
WE SAY: We are glad that President Obama spoke about the men approved for release and the efforts to release them. There are, however, 48 men approved for release out of the 107 men still held, and 37 of these men were approved for release six years ago by the Guantánamo Review Task Force that the president established shortly after he first took office in January 2009. Holding men for so long who have been approved for release is unforgivable, as we have repeatedly made clear. We also hope that the recent mentions in the mainstream media of 17 releases in the new year will turn out to be true.
The other 11 men approved for release had their cases reviewed in the last two years by Periodic Review Boards, established to review the cases of everyone not already approved for release or facing a trial (and there are just ten men in this latter category). The PRBs have had an astonishing success rate for the prisoners -- 15 out of 18 men's cases reviewed to date have ended with recommendations for their release (a success rate of 83%), but the process is moving far too slowly. 43 men are currently awaiting reviews, as explained in our definitive PRB list, published at the start of December, and at the current rate these will not be completed until long after Obama leaves office. The president therefore needs to do all in his power to speed up the reviews in 2016.
The President: There’s going to come to a point where we have an irreducible population -- people who pose a significant threat, but for various reasons, it’s difficult for us to try them in an Article III court. Some of those folks are going through a military commission process. But there’s going to be a challenge there.
Now, at that stage, I’m presenting a plan to Congress about how we can close Guantánamo. I’m not going to automatically assume that Congress says no. I’m not being coy, David. I think it’s fair to say that there’s going to be significant resistance from some quarters to that. But I think we can make a very strong argument that it doesn’t make sense for us to be spending an extra $100 million, $200 million, $300 million, $500 million, a billion dollars, to have a secure setting for 50, 60, 70 people. And we will wait until Congress has definitively said no to a well-thought-out plan with numbers attached to it before we say anything definitive about my executive authority here. I think it’s far preferable if I can get stuff done with Congress.
WE SAY: It is not just for reasons of justice that President Obama needs to speed up the PRB process. His talk of people who cannot be tried should set alarm bells ringing for anyone who respects the rule of law, as it appears to endorse the policy of indefinite detention without charge or trial that has existed at Guantánamo since it opened in January 2002. However, we recognize that, according to the laws of war, President Obama has the right to hold people until the end of hostilities. As a result, he is entitled to transfer prisoners to the U.S. mainland to be held without charge or trial, but the prisoners will have constitutional rights denied to them at Guantánamo, and will be able to launch new lawsuits that, we believe, will severely challenge the supposed justification for their ongoing imprisonment.
As "Close Guantánamo" co-founder Tom Wilner has explained, "If the detainees are brought to the United States, the government loses its prime argument for denying them constitutional rights. The imprisonment of anyone without charge or trial on the U.S. mainland is radically at odds with any concept of constitutional due process. Bringing them to the United States means that they would almost certainly have full constitutional rights and the ability to effectively challenge their detentions in court. They would then no longer be dependent solely on the largesse of the Obama administration, or whatever administration happens to follow it, but could gain relief through the courts."
David Jackson: So actually you could -- right -- [close Guantánamo] on your own?
The President: David, as I said -- and I think you’ve seen me on a whole bunch of issues like immigration -- I’m not going to be forward-leaning on what I can do without Congress before I’ve tested what I can do with Congress. And every once in a while, they’ll surprise you, and this may be one of those places -- because I think we can make a really strong argument. Guantánamo continues to be one of the key magnets for jihadi recruitment.
To Roberta [Rampton]’s question earlier about how do they propagandize and convince somebody here in the United States who may not have a criminal record or a history of terrorist activity to start shooting -- this is part of what they feed, this notion of a gross injustice, that America is not living up to its professed ideals. We know that. We see the Internet traffic. We see how Guantánamo has been used to create this mythology that America is at war with Islam. And for us to close it is part of our counterterrorism strategy that is supported by our military, our diplomatic, and our intelligence teams.
So when you combine that with the fact that it’s really expensive that we are essentially at this point detaining a handful of people and each person is costing several million dollars to detain, when there are more efficient ways of doing it, I think we can make a strong argument.
But I’ll take your point that it will be an uphill battle. Now, every battle I’ve had with Congress over the last five years has been uphill. But we keep on surprising you by actually getting some stuff done. Sometimes that may prove necessary, but we try not to get out ahead of ourselves on that.
WE SAY: President Obama is correct to call Guantánamo "one of the key magnets for jihadi recruitment." In our mission statement, when we founded "Close Guantánamo" in 2012, we quoted President Obama, in a speech in early 2009, stating that, "instead of serving as a tool to counter terrorism, Guantánamo became a symbol that helped al-Qaeda recruit terrorists to its cause. Indeed, the existence of Guantánamo likely created more terrorists around the world than it ever detained." We also agree with the president about the outrageous cost of Guantánamo, and as we also stated in our mission statement, we believe that Guantánamo "undermines our bedrock commitment to the rule of law, making that fundamental principle less secure for all Americans."
We also hope, of course, that President Obama will be able to close Guantánamo with the support of Congress, and we remember that, back in May 2013, in a major speech on national security at the National Archives, he said, of Guantánamo, "there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened."
However, we are prepared for Congress to fail to cooperate with the president, and we bear in mind the op-ed in the Washington Post in November by Greg Craig, who was White House Counsel in 2009, and Cliff Sloan, the envoy for Guantánamo closure in the State Department from 2013-14, entitled, "The president doesn’t need Congress’s permission to close Guantánamo." Craig and Sloan wrote, "Some maintain that the congressional ban on transfers from Guantánamo to the United States prevents closure without congressional approval. But that is wrong. Under Article II of the Constitution, the president has exclusive authority to determine the facilities in which military detainees are held. Obama has the authority to move forward. He should use it."
To ask President Obama to speed up the release of prisoners from Guantánamo, and the Periodic Review Boards, call the White House on 202-456-1111 or 202-456-1414 or submit a comment online.
You can also call the Department of Defense and ask Defense Secretary Ashton Carter to speed up prisoner releases and the PRB process on 703-571-3343.