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The NDAA 2016: GTMO Restrictions Redux (and A Sensible Alternative From Rep. Smith)

The full House Armed Service Committee today will be considering (what’s known as “marking up”) the draft National Defense Authorization Act for 2016 (NDAA). Sections 1036 through 1039 include a series of provisions designed to prohibit, or at least seriously restrict, the transfer of detainees out of Guantánamo. Some of these restrictions are to be expected – they are continuations of other bad policies already in place. Others are novel efforts to further limit the ability of the Obama administration to transfer detainees – even when the transfers have been approved unanimously by the Departments of Defense, State, Justice and Homeland Security, the  Joint Chiefs of Staff, and Office of the Director of National Intelligence.  Fifty-seven of the 122 detainees left in Guantánamo fall into this category of cleared for transfer, yet not yet moved out.

The NDAA transfer restrictions are yet another installation in the saga of Guantnamo propaganda. And by “Guantánamo propaganda,” I don’t mean the obvious propaganda value that Guantánamo provides to terrorist entities worldwide. (There is, after all, a reason why ISIL has decided to dress its hostages in orange prison garb prior to execution.)   Rather, I am referring to the propaganda generated by certain Republican lawmakers (joined by some Democrats) who will seize on every opportunity to define themselves as tough on terror – even if what they are proposing involves fear mongering, a distortion of the actual facts, and policies that ultimately threaten to make the nation less safe.

Representative Adam Smith (D-WA), the Ranking Member of the House Armed Services Committee, is reportedly planning to offer an amendment that would strike the most onerous of these provisions.   This is a sensible response – and one that all responsible Representatives should support.

The specifics:

(i) Consistent with restrictions currently in place, the legislation (Section 1036 of the proposed NDAA) would prohibit the use of Department of Defense funds to transfer of Guantánamo detainees to the United States – even for trial or for needed medical treatment. It also prohibits (Section 1037) the modification or construction of any facilities within the United States for purposing of holding any of the Guantánamo detainees by the Department of Defense.

(ii) Of particular concern, the draft legislation (Section 1038) includes a novel prohibition on the transfer of detainees to any “combat zone.” While in theory that sounds like a sensible restriction – and one that the administration no doubt imposes on itself – the definition of “combat zone” bears little resemblance to what that term ordinarily conveys.   The term is defined to cover those areas where the IRS provides tax exemptions to the members of the Armed Forces. It includes, among other places, Albania, Bosnia-Herzegovina, and Jordan – all countries that have successfully resettled several Guantánamo detainees.  The definition of “combat zone” even encompasses Saudi Arabia, a U.S. ally known for conducting one of the most rigorous detainee reintegration programs for repatriated detainees. Such restrictions cut off a range of possible – and sensible (depending on the details) – options for detainee repatriation, making it even more difficult than it is already to transfer out even those already cleared to leave.

(iii) The legislation  (Section 1039) also reinstates onerous certification requirements as a pre-condition to transferring Guantánamo detainees out of the detention center – applied even to those that have been cleared for transfer by the unanimous consent of all of the intelligence and national security agencies. This is a return to requirements in place under the NDAA for 2013.  And while the prohibitions include the possibility of the Secretary of Defense issuing a national security waiver, this is something that the administration was previously loath to do.   Since the certification restrictions were lifted, transfers have progressed much more swiftly – with over 30 detainees moved out of Guantánamo in the last year, the vast majority of whom had been cleared for transfer years ago.

Notably, even with the step-up in transfers, recidivism rates have remained at the low level of less than 6% for those transferred by the Obama administration, as compared to more than 20% for those transferred by the Bush administration (and an estimated 70% recidivist rate for violent offenders released from U.S. state prisons). While any level of recidivism is a concern, the figures need to be understood in perspective.  First, these are men who are closely monitored and return to their fight at their own peril; many have been re-captured or killed. Second, we need to have realistic expectations about risk. It is completely unrealistic to expect a risk-free world. (If we did, we’d never release anyone from state or federal prison.) We are talking about a handful of men who will undoubtedly be monitored with care – hence, the subsequent recaptures and deaths. This is nothing compared to the threat we face from thousands of nameless others, many of whom continue to add to their rank by pointing to Guantánamo as a symbol of what to hate about America.  Third, and relatedly, any accurate cost-benefit analysis needs to consider not only the risks associated with transfer, but also the costs associated with continued detention. And the costs are many: the fiscal costs (Guantánamo costs taxpayers an estimated half-billion dollars per year); the security costs (see Retired General Michael Lehnert on that point here); and the reputational costs, including the toll it puts on the ability to promote our core values, including the rule of law and promotion of basic human rights, abroad.

Other provisions in the draft legislation include a host of reporting requirements, including one provision (Section 1041) that ties 25% of the Department’s funding to the submission of documents related to the 2014 transfer of five detainees to Qatar in exchange for the release of Sergeant Bowe Bergdahl.

To make matters worse, Rep. Jackie Walorski (R-IN) plans to offer an amendment at the mark-up that would impose a total ban on the transfer of Guantánamo detainees, absent a court order to the contrary.

I and others (including HaroldMarty, and Ben Wittes over at Lawfare) have previously explained ad nauseum why transfer prohibitions are a bad idea. Here’s to hoping (against all odds) that the Smith amendment prevails.  And that Walorski’s fails.  It is the only responsible response.

 

 

 

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About the Author

is an Associate Professor at American University Washington College of Law, where she teaches and writes in the fields of national security law, criminal law, and constitutional law. You can follow her on Twitter (@jendaskal).