End 20 Years Of Injustice

How Congress Is Finally Helping President Obama to Release Prisoners from Guantánamo

Campaigners for the closure of Guantánamo outside the White House on January 11, 2013, the 11th anniversary of the opening of the prison (Photo: Andy Worthington via Flickr).

By Andy Worthington, December 22, 2013

Following three years of presidential inertia on Guantánamo -- after Congress imposed onerous restrictions on the release of prisoners, and President Obama refused to spend political capital bypassing or challenging lawmakers -- legislative amendments proposed by the Senate Armed Services Committee, chaired by Sen. Carl Levin, have been accepted by Congress. The National Defense Authorization Act for 2014, which contains the amendments, was approved by the House of Representatives last week and passed the Senate by 84 votes to 15 on Thursday night.

The changes, which I wrote about last month in an article entitled, "Senate Passes Bill to Help Close Guantánamo; Now President Obama Must Act," emerged from the committee in June, but although they were accepted by Congress last month, after what the Associated Press described as "a quiet yet effective lobbying push" by senior administration officials, including President Obama's counter-terrorism adviser Lisa Monaco and Cliff Sloan, the veteran diplomat appointed this year, along with Paul Lewis at the Pentagon, to be an envoy for the closure of Guantánamo, the House of Representatives, where Republicans have a majority, had voted to keep all the restrictions in place.

After the Senate vote last month, a compromise had to be thrashed out between the Senate and House Armed Services Committees, in which proposals to remove the onerous restrictions on the release of prisoners survived, but other proposals -- allowing prisoners to be brought to the U.S. for detention, for trials or for medical treatment -- did not. Without these particular changes, it is still not possible for Guantánamo to be closed, but for now, at least, these amendments make it easier for the president to release prisoners who were cleared for release four years ago by his own high-level, inter-agency Guantánamo Review Task Force -- and, perhaps even more importantly, reassure him that he has support for releasing prisoners in Congress.

Describing the situation after the vote, Sen. Levin explained, “About half of the detainees would be detainees that could be transferred to [the] countries from which they come. About half of the detainees would remain in Guantánamo because of the prohibition on transferring them to the United States for detention and for trial.”

Of the remaining 158 prisoners, exactly half -- 79 men in total -- were cleared for release by the task force, whose final report was published in January 2010. The task force recommended 156 men for release, but although 66 men were freed between February 2009 and September 2010, including dozens who were given new homes in third countries because it was unsafe for them to be repatriated -- like the majority of the 22 Uighurs (Muslims from China's Xinjiang province), who had been seized by mistake -- those releases ground to a halt after the release of two men to Germany in September 2010 because of the onerous restrictions imposed by Congress.

Lawmakers had imposed three particular sets of restrictions on the release of prisoners in successive versions of the National Defense Authorization Act over the last three years.

The first prevented the administration from transferring any prisoner unless the Pentagon was prepared to certify that their home country was not "facing a threat that is likely to substantially affect its ability to exercise control over the individual." Officials in the administration told the Associated Press that was "a bar too high in particular for Yemen," where Al-Qaeda has a presence.

Significantly, however, until recently President Obama also played a direct role in preventing the release of prisoners to Yemen. After a Nigerian man, Umar Farouk Abdulmutallab, who had been recruited in Yemen, tried and failed to blow up a plane bound for Detroit on Christmas Day 2009 with a bomb in his underwear, President Obama imposed a moratorium on the release of any Yemeni prisoners, which he only lifted in May this year, when, prompted by international criticism precipitated by a prison-wide hunger strike at Guantánamo, he delivered a major speech on national security issues, in which he also promised to resume releasing prisoners, and announced his intention to appoint two envoys to help with the release of prisoners -- the positions to which Cliff Sloan and Paul Lewis were appointed.

A second restriction prohibited the transfer of any prisoner to any country where even a single released prisoner has engaged or re-engaged in terrorism -- or is alleged to have engaged or re-engaged in terrorism. That includes Afghanistan (home to 17 of the remaining prisoners), Saudi Arabia (home to a handful of individuals, ill-advisedly released by George W. Bush, who went on to become involved in the Al-Qaeda cell in Yemen), and, as the Associated Press reported, Kuwait, "a key U.S. ally that has been lobbying for the return of its two remaining detainees" -- Fayiz al-Kandari and Fawzi al-Odah, profiled here -- and "has built a still unused rehabilitation center to peacefully reintegrate them." Kuwait's inclusion on this list is because in April 2008 a released prisoner, Abdullah al-Ajmi, who was widely regarded as mentally unstable by his fellow prisoners and by lawyers prior to his release in November 2005, blew himself up as a suicide bomber in Iraq.

Whilst it was understandable that these incidents caused concern in Congress, it is unacceptable to introduce a policy of "guilt by nationality," which would be clearly unjustifiable if, in the domestic prison system, a serious crime committed by, say, a California resident, led to a ban on any prisoner from California ever being released from prison again.

A third prohibition prevented the release of prisoners to countries declared by the U.S. as state sponsors of terrorism, which, the AP noted, prevented the release of "three Syrians who have been approved for transfer but would be barred from going home under the current rules."

With the lifting of restrictions, so that the administration now only needs to make a determination that a prisoner release is in the national security interests of the U.S., President Obama needs to make sure that he makes it a priority to release the 79 remaining prisoners cleared for release by his task force, following up on the initiative he has shown in the last four months.

In August, with the restrictions still in place, he released two Algerians, and he has followed up, in the last three weeks, with six more releases -- two more Algerians (albeit, unfortunately, two men who didn't want to return home), two Saudis and two Sudanese prisoners. Of these last two men, one, Noor Uthman Muhammed, was freed under the terms of a plea deal negotiated in his trial by military commission in February 2011, and the other, Ibrahim Idris, is severely mentally ill, and had his release ordered by a judge. As the AP explained, however, "Court ordered transfers are excluded from the congressional restrictions; otherwise the administration would not have been able to send even a debilitated prisoner home to certain countries."

As we await more releases, we remind President Obama of his words earlier this year. "Guantánamo is not necessary to keep America safe," he said, adding, "It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed."