The 2015 National Defense Authorization Act: A Silver Lining for Guantanamo Detainees

Yesterday afternoon the House approved the Senate and House-agreed upon version of the National Defense Authorization Act for 2015, with two noteworthy consequences for Guantanamo detainees. The legislation is expected to pass the Senate next week.

First, the final legislation drops the highly problematic ban on transfers to Yemen that had been included in the Senate version of the bill — an issue I have written about here and here. Second, and likely as an extraction for the first, it omits a Senate provision that would have permitted transfers to the United States for purposes of continued detention or trial. It instead extends the bar on such transfers for another year. Transfers outside the United States are thus permitted, albeit pursuant to narrow substantive standards and a requirement of advance notification to Congress, but transfers to the United States are categorically prohibited.

While this has been described a “major setback” to the President’s closure efforts, the opposite is in fact true. The final passed legislation not only gives the President much of what he needs to close Guantanamo responsibly, but it also saves the administration from an empty claim of success, for reasons I explain below.

First, the purported setback: The dominant narrative on Guantanamo (at least within the United States) assumes a core group of detainees too dangerous to transfer elsewhere, yet impossible to criminally prosecute. This is based largely on a 2010 Guantanamo Task Force Report that placed 48 men in this category, coupled with an often unspoken assumption that what was true in 2010 will remain true into perpetuity. For such detainees, transfer to continued law-of-war detention in the United States remains the only way for the United States to maintain sufficient control over the men, yet also comply with the President’s long-standing commitment to Guantanamo’s closure.

But there are two problems with this analysis. First, it is wrong to assume that a determination about the threat level of men made in 2010 will or should persist indefinitely. Already, the number of men who fall within the too dangerous to release and too difficult to prosecute category has decreased by 25 percent – now down to 36. This is due to a combination of deaths, transfers (including the controversial exchange of five Afghan detainees for the release of Sargeant Bergdahl) and decisions by the periodic review board (initiated in late 2013) that continued detention of several of these men is no longer “necessary to protect against a continuing significant threat to the security of the United States.” It turns out that after a decade-plus of incarceration, in which the detainees are cut off from their networks and growing older and less agile, once high-level threats become less threatening.

Second, it is wrong to assume that a determination about the status of men made in 2010 will or should persist forever.   By analogy to rules governing international armed conflict (a conflict involving two or more nation-states, such as, for example, World War II), the administration asserts – and courts have to date agreed – that these men can be detained until the end of hostilities. But that does not mean any hostilities. It means the hostilities that justified their detention in the first place.   At some point the conflict with al Qaeda will end, and the justification for the continued detention of these men will falter.  Despite the administration’s best efforts to label the conflict with ISIL as part of the same, continuous conflict with al Qaeda that justified the detention of these men in the first place, the claim – and thus the legal justification for perpetual detention – is already subject to significant criticism.   Over time, particularly if applied to ISIL’s successors and associated forces, the continuing conflict claim will increasingly ring hollow.

The transfer of the Guantanamo detainees to the United States thus would result in the actual detention center at Guantanamo being closed, but without any resolution to the underlying issue that Guantanamo critics complain of – the continued detention without charge pursuant to a thirteen year old and ever evolving armed conflict without an obvious end in sight.  It is, of course, possible, that such transfers will yield some short-term gains for detainees.   Their ability to meet with and confer with attorneys will almost certainly be improved (it’s not easy to get to Guantanamo after all!), and there might be some improvements in their daily lives.

But (as I have written previously) it is equally, if not more, likely that their conditions of confinement will deteriorate, not improve, in line with the greater security risk (or at least greater fears) associated with holding Guantanamo detainees in the nation’s borders. Meanwhile, the spotlight that remains on Guantanamo and provides a continuing impetus for closure will be eliminated.   Obama will have fulfilled his campaign promise and few will continue to care. Absent the Supreme Court stepping in and finding a due process violation in their continued detention – a possibility, but in my view a remote one absent a determination that the armed conflict with al Qaeda has ended, at which point the continued detentions would be impermissible irrespective of where the men are being detained – the detainees will simply have been shuttled from one place to another. Nominally, the administration would be able to claim that it had closed Guantanamo. But it would be doing so in name only.

Second, the opportunity: With the November elections finally over, the administration has reinvigorated its closure efforts. On November 20, the administration transferred five detainees for resettlement in Europe – two to Slovakia and three to Georgia. Several days later, Muhammed Murdi Issa al-Zahrani, was transferred to Saudi Arabia, bringing down the total number of Guantanamo detainees to 142. (Al-Zahrani was one of those detainees that had initially been placed in the group of too dangerous to transfer, but impossible to prosecute, yet was later cleared by a periodic review board.) Another group is reportedly slated to leave soon for Uruguay, and the Chairman of the House Armed Service Committee, Rep. Buck McKeon, has described, and complained about, the high number of transfer notices he has recently received. (By statute, the administration is required to provide 30-day advance notice to Congress before transferring any detainee out of Guantanamo.) In fact, former Sec. of Defense Hagel’s decision to reverse the planned transfer of four Afghans out of Guantanamo reportedly caused such a significant rift with the White House that it may have contributed to his ultimate resignation.

Put simply, the administration appears to have finally stepped up its closure efforts, with officials at the highest levels pushing to draw down the numbers.   But any serious closure effort will ultimately need to involve Yemen.   After all, over half of the remaining detainees hail from there.   While some may be able to be resettled elsewhere, it is unreasonable to think that other nations are going to accept some 70-plus Yemenis, particularly if the United States is taking none. Notably, the U.S. has recently transferred to Yemenis from Afghan custody back to Yemen, which, if deemed successful, may provide a much-needed blueprint for the initiation of transfers out of Guantanamo.  In sum, a ban on repatriation to Yemen would have had a much more deleterious effect on closure efforts than the continued prohibition on transfer to the United States.

To be sure, many will oppose such transfers – including several leaders of the newly elected Congress. And it is possible that fear mongering will prevail over reason, and a new slew of restrictions will pop up once the 114th Congress is sworn in. But the administration has signaled that it will do what it can in the interim. And to that end, the compromise legislation is much more a blessing than a blow. 

About the Author(s)

Jennifer Daskal

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