End 22 Years Of Injustice

Senate Passes Bill to Help Close Guantánamo; Now President Obama Must Act

Sens. Carl Levin and John McCain.

Sens. Carl Levin and John McCain of the Senate Armed Services Committee, whose version of the National Defense Authorization Act, passed by the Senate on November 19, 2013, is designed to lift severe restrictions on the release of prisoners from Guantánamo, which have been in place for the last three years.

By Andy Worthington, November 21, 2013

It's rare that there is good news about Guantánamo, and even rarer that the good news involves Congress. However, on Tuesday, the Senate accepted a version of the annual National Defense Authorization Act, which originated in the Senate Armed Services Committee, and was put forward by the chair, Sen. Carl Levin, along with Sen. John McCain.

The Levin-McCain version of the NDAA is intended to make it much easier than it has been for the last three years for President Obama to release cleared prisoners from Guantánamo, and to seriously revisit his failed promise to close the prison once and for all, and we note, with thanks, the efforts of Senators and officials in the Obama administration to secure this victory.

This important version of the NDAA contains provisions relating to Guantánamo which allow President Obama to release prisoners to other countries without the onerous restrictions imposed by Congress for the last three years. These restrictions have led to the number of released prisoners dwindling to almost zero, even though 84 of the remaining 164 prisoners were cleared for release from the prison in January 2010 by a high-level, inter-agency task force appointed by President Obama shortly after he took office in 2009.

Congress had obliged the president and the defense secretary to certify that any prisoners they wanted to release would, after release, be unable to engage in terrorist activities against the U.S. -- a certification that was, frankly, impossible or almost impossible to make. Lawmakers had also banned the release of prisoners to any country where there was an alleged claim of recidivism; in other words, of a former prisoner "returning to the battlefield."

As the Washington Post explained today, supporters of Guantánamo regularly draw on, and distort, recidivism claims made by the DoD or the Office of the Director of National Intelligence, like Sen. Saxby Chambliss (R-Ga), during the Senate debate on the NDAA. Conflating two figures -- those for ex-prisoners confirmed of recidivism, and those suspected of doing so -- Sen. Chambliss claimed that the recidivism rate is "nearly 29 percent" of former prisoners, when in fact only 16 percent are "confirmed" by the government. Moreover, evidence has never been provided to back up more than a fraction of these claims, and in independent research, which we endorse, the New America Foundation found that a more realistic recidivism rate was just 8.8 percent.

In the revised version of the NDAA passed by the Senate, the defense secretary is no longer blocked by these huge obstacles, and is only required to "substantially mitigate the risk" of any released prisoner "engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests." The defense secretary is also permitted to release prisoners if he determines that "the transfer is in the national security interest of the United States."

The Levin-McCain version of the NDAA also allows the president to transfer prisoners to the U.S. mainland to face trial, or to be imprisoned, thereby making the closure of Guantánamo possible. This version of the NDAA also allows prisoners to be temporarily moved to the U.S. mainland for medical treatment that cannot be provided at Guantánamo.

The struggle to make progress towards the closure of Guantánamo is not over, of course. In June the Republican-controlled House of Representatives passed a version of the NDAA that still includes the onerous transfer restrictions, and that also introduced a complete ban on releasing any prisoners to Yemen. This was a direct snub to President Obama, who, in a major speech on national security issues in May, dropped his own ban on releasing any cleared Yemeni prisoners, who make up two-thirds of the 84 clear prisoners. This was a ban he had first imposed in January 2010, after a Nigerian man recruited in Yemen, Umar Farouk Abdulmutallab, had tried and failed to detonate a bomb in his underwear on a flight from Europe to the U.S.

In the Senate on Tuesday, Senators also voted down, by 55 votes to 43, an amendment to the NDAA by Sen. Kelly Ayotte (R-NH), which was similar to the House version, and would have maintained the current ban on moving prisoners to the U.S. for any reason. Sen. Ayotte's amendment would also have made permanent the current restrictions on transferring prisoners to other countries, as well as explicitly banning the release of any prisoners to Yemen. This defeat showed the extent to which Senators have understood that the status quo on Guantánamo -- largely of their own making, although with a lack of robust opposition from President Obama -- is no longer acceptable.

This is a far cry from the position taken by Senators for the last four and half years, beginning in May 2009, when the Senate voted, by 90 votes to 6, to eliminate $80 million from planned legislation intended to fund the closure of Guantánamo, and to specifically prohibit the use of any funding to "transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States."

The two versions of the bill will now have to be reconciled in conference, where tough negotiating will be required on the part of the supporters of the Senate's version. Here at "Close Guantánamo," we believe that President Obama needs to speak out very publicly in support of the Senate version of the bill, but we also wish to stress that, whatever Congress decides, the president already has the power, through a waiver in the existing legislation, to bypass Congress and release prisoners if he believes it to be in America's national security interests to do so.

On this point, the president clearly does believe that releasing cleared prisoners and revisiting his failed promise to close Guantánamo is "in America's national security interests," because, in April, speaking about Guantánamo, he said, "I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed."

Tom Wilner, the co-founder of "Close Guantánamo," and counsel of record for the Guantánamo prisoners in their Supreme Court cases in 2004 and 2008, noted this when he said, following the result, "The vote in the Senate on Tuesday shows progress in the attitude toward Guantánamo. But it should be clearly understood that the president has the power now to send these men home and he should use his existing authority to do so."