GTMO Transfer Bans Run Amok

A few weeks ago, I wrote about a disturbing provision that was added at the last minute to the Senate Armed Services Committee’s version of the National Defense Authorization Act for FY2015 (NDAA). If the bill becomes law, it would ban the transfer of detainees from Guantanamo to Yemen until the end of 2015.  No such provision was included in the House version of the legislation, and I urged that the provision be stripped on the Senate floor, or, if not then, in conference with the House.

But the House has now joined the bandwagon, passing, by a 238-179 vote, an amendment to the defense appropriations bill that effectively bars the transfer of Guantanamo detainees to Yemen until the end of fiscal year 2015.  (The bill passed the House on Friday and now needs to work its way through the Senate.) While the appropriations and authorization acts are obviously different pieces of legislation, the House vote demonstrates its support of a similar Yemen transfer ban, and makes it highly unlikely that the House and Senate conferees will pull the provision out of the NDAA. If anything, there is now a risk that the provision will end up in the enacted versions of both the authorization and appropriations bills.

As I wrote previously, this is both poor risk management and bad policy–effectively forcing the United States to warehouse men that intelligence and military officials have cleared for transfer years ago. Lest one forget, there are now 149 men at Guantanamo, 88 of whom are Yemenis. More than 50 of the Yemenis have been cleared for either transfer or conditional transfer (with the conditions dependent in part on the security situation in Yemen). The fact that the Obama administration has not transferred any detainees to Yemen since 2009 exemplifies the high level of caution with which it is proceeding. Yet, this history is not good enough for Congress. It would categorically bar all transfers to Yemen, at least for another year, even if a detainee is cleared for transfer, even if the administration is satisfied that there are appropriate security measures in place, and even if a court or the administration determines that the legal basis for detention has expired. Among other things, such a result would almost certainly eliminate any incentive the Yemeni government might otherwise have to develop an effective rehabilitation program for these detainees, and would, assuming the appropriate security measures could be put in place over the next year, deprive the U.S. of the opportunity to transfer out an initial batch of low-risk detainees, learn from the experience, and correct for any problems if and when higher-risk detainees are ultimately returned there (if for example, the administration determines that the basis for continued detention has expired and/or the detainees are ordered released by a court).

Even worse, the House-passed defense appropriation bill includes another provision (sponsored by Tom Cotton (R-AR)) that effectively prohibits any foreign transfers, no matter what the circumstances. When coupled with the  ban on transfers to the United States (which also appears in the legislation), this language would statutorily bar the executive from transferring a detainee out of Guantanamo, even if it was court-ordered to do so, or the executive determined it no longer had the authority to detain him. Not only is such a provision almost certainly unconstitutional, for the reasons Steve Vladeck (among others) ably explained here, it is willfully blind to both the facts and history of Guantanamo.

It is for good reason that by the end of his administration, even President George W. Bush advocated Guantanamo’s closure and aggressively pursued transfers of detainees in the interim. Indeed, his administration transferred over 500 detainees to foreign governments.  And by 2008, both leading presidential candidates (Sen. John McCain and then-Sen. Barack Obama) were clamoring for its closure.  A year ago, Sen. McCain again reiterated this view, joining Sen. Dianne Feinstein in issuing a statement stating “that it is in our national interest to end detention at Guantanamo, with a safe and orderly transition of the detainees to other locations.” The House, by comparison, is now clamoring to freeze Guantanamo in time (and, if the Abu Khattala case is any indication, grow its population), without any regard to the costs (estimated to run over $400 million per year), legality, or details of each detainee’s case–to say nothing of the lessons we should have long-since learned. 

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About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).