By Andy Worthington, June 18, 2013
Yesterday, President Obama fulfilled the first of three promises he made a month ago to resume releasing prisoners from Guantánamo, by appointing an envoy at the State Department to deal with prisoner transfers.
In a speech on national security issues on May 23, in which the President spoke at length about Guantánamo, he made the following promises: “I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.”
In fulfilling the first promise, President Obama has appointed Clifford Sloan, described by The Hill as "a veteran Washington attorney and civil servant." He was "an associate counsel to former President Clinton and an assistant to the solicitor general in the first Bush administration," and also "worked as associate counsel in the Office of Independent Counsel investigating the Iran-Contra affair and clerked for Supreme Court Justice John Paul Stevens." More recently, he was the publisher of Slate magazine, and legal counsel for the Washington Post's online operations.
In a statement, Secretary of State John Kerry said, “I've known and respected Cliff Sloan for nearly ten years. His intellect and skill as a negotiator is respected across party lines, and he's served presidents Republican and Democratic with equal skill. I appreciate his willingness to take on this challenge. Cliff and I share the President's conviction that Guantánamo’s continued operation isn't in our security interests."
Kerry also accepted that closing Guantánamo "will not be easy, but if anyone can effectively navigate the space between agencies and branches of government, it’s Cliff. He's someone respected by people as ideologically different as Kenneth Starr and Justice Stevens, and that's the kind of bridge-builder we need to finish this job.”
President Obama still has a second envoy to appoint, at the Pentagon, but this is good news. However, it is no time for complacency. The President urgently needs to fulfill the two other promises -- releasing cleared Yemenis and releasing other cleared prisoners. 86 of the remaining 166 prisoners were cleared for release by the President's inter-agency Guantánamo Review Task Force in January 2010, and 56 of those men are Yemenis. Although it is important that President Obama lifted the ban he himself imposed on releasing cleared Yemenis, following the failed airline bomb plot on Christmas Day 2009, which was hatched in Yemen, obstacles remain in Congress.
The appointment of Cliff Sloan may augur well for engagement with the parties necessary for the release of prisoners, but much work still remains to be done. On Friday, the House of Representatives voted to renew the restrictions on the release of prisoners that have been present in the National Defense Authorization Acts over the last two years, cynically adding a specific ban on the release of prisoners to Yemen.
The Yemen amendment, which prohibits using funds to transfer prisoners to Yemen, was put forward by Rep. Jackie Walorski (R-Ind.), and was passed by 236 votes to 188. Fundamentally misunderstanding the problems of endlessly holding men who have never been charged, tried or convicted of crimes, Rep. Walorski said, “It makes no sense to send terrorists to a country that has an active terrorist network,” even though, of course, the cleared prisoners are not, and have never been terrorists.
Democrats argued, as The Hill put it, that the Yemen government "has proved itself to be an ally in fighting the AQAP [Al-Qaeda in the Arabian Peninsula]," and that Congress "should not tie the president’s hands when the Pentagon already certifies that releasing detainees to another country is not a risk to national security."
Rep. Adam Smith (D-Wash.), the senior Democrat on the House Armed Services Committee, who proposed a powerful amendment to secure the closure of the prison that was defeated, said, “We cannot warehouse these people forever. We need to give the president options, not restrict him.” In addition, Rep. Rob Andrews (D-N.J.) said that "the intelligence community and military had decided to clear the 56 detainees, and that Congress should not be overruling them."
The Senate, where Democrats have a majority, will also debate its own version of the NDAA, and it is to be hoped that they will support the President's plans, although whether enough pressure can be exerted to persuade lawmakers to drop all the restrictions remains to be seen. If not, the President will need to use a waiver in the NDAA that has existed since the restrictions were first imposed a year and a half ago, but which he has not yet used.
The restrictions imposed by lawmakers involve passages in the legislation preventing prisoners from being released if there is a single claim that anyone previously transferred to their home country “had subsequently engaged in any terrorist activity” (making the country in question a “recidivist country”) and also banning the release of prisoners to any other country unless the Secretary of Defense issues a certification personally “ensur[ing] that the individual [transferred] cannot engage or reengage in any terrorist activity.”
That, of course, is a certification that is impossible to make, but the waiver allows the President and the Secretary of Defense to bypass Congress and release prisoners if they state that it is “in the national security interests of the United States” to do so. Last month, Sen. Carl Levin, the powerful chair of the Senate Armed Services Committee, sent a letter to President Obama, via his legal counsel, reminding him of his role in securing the waiver. “[M]ore than a year ago," he wrote, "I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.”
Last week, Daniel Klaidman reported for Newsweek that there was also progress on the Yemeni issue, when the government of Yemen announced that it "had begun to work with Saudi Arabia to develop a rehabilitation program" for released prisoners. Klaidman added that President Obama lifted his ban "contingent on assurances that they could be repatriated safely," adding, "A rehab program could smooth the way for their return."
Klaidman also noted that a visit to Guantánamo by Sen. Dianne Feinstein, the Chair of the Senate Select Committee on Intelligence, and Sen. John McCain, a senior member of the Senate Armed Services Committee, was significant, especially as they were accompanied by White House Chief of Staff Denis McDonough. As Klaidman stated, "The excursion was seen as a positive signal by those who want Obama to close Gitmo because it suggests that he is putting muscle behind his promise and that he understands he can succeed only by engaging Congress."
Sen. McCain also spoke in support of closing Guantánamo, telling CNN's "State of the Union" that, as the Huffington Post put it, "there is increasing public support for closing the military prison at Guantánamo Bay, Cuba, and moving detainees to a facility on the U.S. mainland." He said, "There's renewed impetus. And I think that most Americans are more ready," adding that he and Sen. Lindsey Graham "are working with the Obama administration on plans that could relocate detainees to a maximum-security prison in Illinois," as the Huffington Post also described it. As McCain also said, "We're going to have to look at the whole issue, including giving them more periodic review of their cases."
Although these developments hint at progress, they are not, in and of themselves, sufficient to constitute the kind of significant activity that is necessary both to move definitively towards the closure of the prison, and, crucially, to reassure the prisoners still risking their lives on a prison-wide hunger strike that they have not been forgotten.
As Daniel Klaidman put it, "proponents of closing Guantánamo say the most important signal has yet to arrive: evidence that Obama is willing to spend significant political capital on the effort." That, he added, "could come in the form of directing Secretary of Defense Chuck Hagel to issue national-security waivers to bypass onerous restrictions Congress has imposed on transferring detainees from the prison."
Klaidman also spoke to Carlos Warner, a federal public defender who represents eleven men still held at Guantánamo, who told him, “If Obama’s serious, he’ll start transferring men immediately using the authority he already has.”
Yesterday, similar sentiments were expressed by Cori Crider, the strategic director at Reprieve, the London-based legal action charity whose lawyers (including Crider) represent 15 men still held at Guantánamo, including Shaker Aamer, the last British resident at the prison.
Crider said, "We’re glad that President Obama has re-opened the State Department office. It never should have been closed. But until the White House itself takes charge of its policy to close Guantánamo, and uses the power it has to get men who have been cleared for release home to US allies, people just are not going to move. Barack Obama could direct national security waivers to be signed tomorrow to send Shaker Aamer home to his family in the U.K. -- this sort of thing doesn’t need a new appointment, it needs the President to show some spine."
In the heading for this article, I mentioned three promises that President Obama needs to fulfill. In addition to releasing the Yemenis, and releasing other cleared prisoners (including Shaker Aamer), he needs to address the 46 other prisoners he designated for indefinite detention without charge or trial in an executive order in March 2011. He did so on the basis that the Guantánamo Review Task Force had concluded that they were too dangerous to release, but that the evidence against them couldn't be used in a trial. What this means is that the information used to make these decisions is largely worthless -- extracted from prisoners who were tortured or otherwise coerced, or from others who were bribed with better living conditions, or preyed on because they were mentally unstable.
The unfulfilled promise that President Obama made to these men is the promise to provide them with periodic reviews of their cases, which have not yet even begun, two years and three months after the promise was made. As Julian E. Barnes and Evan Perez noted in the Wall Street Journal last month, Army Lt. Col. Todd Breasseale, a Pentagon spokesman, told them, "The administration remains committed to fully implementing the PRB [Periodic Review Board] process as soon as possible and recently directed departments and agencies to resolve all remaining issues impeding full implementation so these reviews can begin in short order."
An unidentified official was less convinced, telling them that "defense, intelligence and national-security officials have yet to agree on all the issues involved, including thorny questions of what information, including evidence against detainees, may be shared with the detainees during the reviews," but other officials "predicted Mr. Obama's speech would force the agencies to come to agreement and start the reviews." One noted, "The president was extraordinarily direct."
John Bellinger, a former legal adviser to the State Department in the Bush administration, told the journalists that, in his opinion, President Obama "ducked the hardest question about Gitmo" in his national security speech -- "what to do with those who pose a significant threat but cannot be prosecuted," but that is not strictly true, as that is the purpose of the review process.
What is necessary is for it to be genuinely objective, and for it to start from the presumption that, whatever advice President Obama was given back in 2010, it is unacceptable to hold 46 men for the rest of their lives without charge or trial, and 21 others, initially designated for trials by the task force, but who, as the military commissions' chief prosecutor, Army Brig. Gen. Mark Martins, conceded last week, will never be tried.
For all of these men, we at "Close Guantánamo" share the sentiments of Raha Wala, a counsel at Human Rights First, who told the Wall Street Journal, "I expect the president will take the view that we can't hold these individuals forever, even if we can't try them."
In the meantime, we will continue to monitor developments closely. We understand that the closure of the prison needs clear plans if lawmakers are ever to be persuaded to back proposals to bring it to an end. Some former officials who spoke to the Wall Street Journal's reporters said they believe that the administration "will eventually back proposals to bring these detainees [the 80 not cleared for release] to an American maximum-security prison," echoing John McCain's comments at the weekend, which I mentioned above.
Noting that President Obama said in his speech that, as well as working towards releasing the 86 men cleared for release, he "would work with Congress on finding a suitable site in the U.S. for holding judicial proceedings for others," the reporters also stated that a senior administration official told them that "the most likely spot would be the U.S. Navy brig in Charleston, S.C."
Many advocates for the closure of Guantánamo find that disturbing, but at "Close Guantánamo" we have always believed that moving men to the U.S. mainland will give them greater rights than they have at Guantánamo, and will enable new legal challenges to be made. For now, however, we hope that everyone concerned with closing the prison will keep pushing for the release of the 86 cleared prisoners, and will also keep pushing for the majority of the 80 others to be freed unless they are to be put on trial.