By Andy Worthington, June 28, 2016
This Sunday, July 3, President Obama will have just 200 days left of his presidency; 200 days, in other words, to fulfill the promise he made, on his second day in office, to close the prison at Guantánamo Bay. On January 22, 2009, he actually promised to close Guantánamo within a year, but although it is now nearly seven and a half years since that promise, it remains important for President Obama’s legacy that he does all he can to fulfill his promise before he leaves office.
To mark the occasion, we are asking those who want to see Guantánamo closed to print off a poster reminding President Obama that he has just 200 days left to close Guantánamo, take a photo of yourself with it, and send it to us. We all put the photos up on the website here and here, and also on social media (see our Facebook and Twitter pages), and we will be making sure that we tie in publicity to the values of the U.S., as celebrated on Independence Day the day after.
We began the Countdown to Close Guantánamo in January, when I appeared on Democracy Now! with music legend Roger Waters, and we have been counting down every 50 days, supporting President Obama, who has stepped up his efforts to close the prison this year, promising to release the men approved for release (29 of the 79 men still held) by the end of summer, and to complete reviews for all the other men, except the ten facing trials, before the end of the year.
These reviews are the Periodic Review Boards, and since 2013 they have been reviewing the cases of all the men not already approved for release and not facing trials. 50 reviews have taken place to date, and just 14 other men are currently awaiting reviews. Of the 50 reviews to date, 36 decisions have been taken, and two-thirds of those — 24 in total — have resulted in prisoners being approved for release. This has been an indictment of the caution of the Guantánamo Review Task Force that reviewed their cases in 2009, and described them as "too dangerous to release," or as candidates for prosecution.
So with 50 men to deal with — a number that will undoubtedly be reduced as the PRBs continue their assessments — what is President Obama’s plan, with 200 days to go? In February, via the Pentagon, he delivered a plan to Congress, which we discussed here. Containing the promises to release cleared prisoners and to conclude the first round of PRBs, the plan also involved the administration stating, "We’re going to work with Congress to find a secure location in the United States to hold remaining detainees."
Closing Guantánamo is impossible without some men being moved to the U.S. mainland — those facing trials, and those the administration wants to continue holding under the laws of war — but Congress, which, for many years, has passed legislation preventing Guantánamo prisoners from being brought to U.S. soil under any circumstances, remains unwilling to work with the president.
Some of President Obama’s advisors — including former White House counsel Greg Craig and Cliff Sloan, the former State Department envoy for Guantánamo closure — suggested that, if Congress refused to cooperate, he could close Guantánamo by executive order. However, just two weeks ago, Reuters reported that the Obama administration was "not pursuing the use of an executive order to shutter the Guantánamo Bay military prison after officials concluded that it would not be a viable strategy," according to "sources familiar with the deliberations." The sources added that President Obama "could still choose to use his commander-in-chief powers, but the option is not being actively pursued."
A source familiar with the discussions explained that "White House lawyers and other officials studied the option of overriding the ban but did not develop a strong legal position or an effective political sales pitch in an election year," as Reuters described it. The source said, "It was just deemed too difficult to get through all of the hurdles that they would need to get through, and the level of support they were likely to receive on it was thought to be too low to generate such controversy, particularly at a sensitive time in an election cycle."
Reuters also explained that the administration was focusing on getting the number of prisoners down "to such a low number, perhaps 20, that the cost of keeping [the prison] open could prove unpalatable to Congress," although Republican lawmakers "remain unswayed." Nevertheless, the administration has a point. The prison cost $445 million to run last year — "more than $5.5 million a year for each of the 80 remaining prisoners."
In the meantime, lawmakers are trying to make it even more difficult for Guantánamo to be closed, in the House and Senate’s versions of next year’s National Defense Authorization Act (NDAA), passed on May 18 and June 14 respectively.
As Human Rights Watch explained, "Both versions of the bill contain problematic provisions on Guantánamo, including onerous transfer restrictions, bans on transferring detainees to the U.S. for continued detention or trial, and complete bans on detainee transfers to Libya, Somalia, Syria, and Yemen. The Senate version adds a new provision that bans the transfer of detainees to countries where the State Department has issued travel warnings. The House version requires the administration to provide Congress with information on how it plans to handle current and future detainees."
As we noted in an article in May, the Senate version of the bill also contains a provision that allows prisoners to be temporarily moved to the U.S. mainland for emergency medical treatment, which is commendable, and a proposal to allow some prisoners to "plead guilty to criminal charges in civilian court via video teleconference," which would also allow them to be "transferred to other countries to serve their sentences," as the New York Times explained.
Reuters also explained:
The Obama administration has threatened to veto both versions of the bill. It has expressed particularly strong objections to the Guantánamo provisions in the Senate version, noting that State Department travel warnings are designed to "[convey] information to individual tourists and other travellers," and do not "reflect a country's ability to mitigate potential risk with regard to transferred [Guantánamo] detainees."
However, as Reuters also noted, the Obama administration "has repeatedly failed to follow through on threats to veto previous Defense Authorization bills over Guantánamo restrictions. Though Obama did veto the 2016 NDAA last year, he ultimately signed an amended bill into law with no changes to the Guantánamo provisions."
And finally, adding to the pressure on President Obama, last week Reuters reported how, for the last three months, Attorney General Loretta Lynch has been opposing the proposal to allow prisoners to make guilty pleas in federal court by videoconference, and "has twice intervened to block administration proposals on the issue, objecting that they would violate longstanding rules of criminal-justice procedure."
As Reuters proceeded to explain, "In the first case, her last-minute opposition derailed a White House-initiated legislative proposal to allow video guilty pleas after nearly two months of interagency negotiations and law drafting. In the second case, Lynch blocked the administration from publicly supporting a Senate proposal to legalize video guilty pleas." A senior Obama administration official, who "supports the proposal and asked not to be identified," as Reuters put it, said, "It’s been a fierce interagency tussle."
Administration officials told Reuters that they were particularly focused on the 30 or so men expected to still be held after the conclusion of the PRBs, and said that "allowing video feeds could reduce that number to somewhere between 10 and 20." A senior administration official said, "This is the group that gives the president the most heartburn."
Reuters also noted that Lynch and her deputies at the Justice Department "argued that the laws of criminal procedure do not allow defendants to plead guilty remotely by videoconference," adding, "Even if Congress were to pass the law, Lynch and her aides have told the White House that federal judges may rule that such pleas are in effect involuntary," because the Guantánamo prisoners "would not have the option of standing trial in a U.S. courtroom."
Reuters also stated, "A defendant in federal court usually has the option to plead guilty or face a trial by jury," but in the case of the Guantánamo prisoners, "the only option they would likely face is to plead guilty or remain in indefinite detention." A person familiar with Lynch’s concerns about the proposal said, "How would a judge assure himself that the plea is truly voluntary when if the plea is not entered, the alternative is you’re still in Gitmo? That’s the wrinkle."
As all of the above makes clear, closing Guantánamo remains an uphill struggle, but those of us who care about the need for it to be closed — to bring to an end this disgraceful chapter in U.S. history — must not give up on exerting pressure to get it closed once and for all.
We look forward to seeing your photos!
If you want to do more, please feel free to call the White House on 202-456-1111 or 202-456-1414 or submit a comment online.