The insoluble Guantánamo problem (Part Two: The NDAA restrictions)

In my earlier post, I explained that the failure to close the detention facility at Guantánamo has been the one conspicuous and unfortunate exception to what has otherwise been a remarkably successful effort by the President to transform U.S. policies and practices concerning counterterrorism detention. That GTMO failure is largely a function of statutory limitations Congress has imposed, especially the prohibition on using federal funds to transfer any GTMO detainees to the United States for prosecution or detention.

The President and Senator Feinstein, among others, recently urged Congress to remove such restrictions from the forthcoming 2016 National Defense Authorization Act. Indeed, those restrictions were one of three reasons the President offered for his veto on October 22. In response, however, the armed services committees did not budge: Congress compromised on other matters, but not on the GTMO provisions. Last Thursday, the House voted 370-58 to approve an amended version of the NDAA, with those restrictions still in place. This Tuesday, the Senate did likewise, by a vote of 91-3. And the White House has indicated that the President will sign the bill.

What does this mean for the prospect of the President fulfilling his promise to close Guantánamo?

In order to answer that question, it’s important to distinguish between two different sorts of problematic GTMO provisions in the pending NDAA. One of the principal provisions deals with the first half of the GTMO population — the detainees who have been or will be cleared for transfer overseas — whereas two other important restrictions deal with the other half of the detained individuals. The latter restrictions are, I think, a much greater obstacle to closure of the facility.

Overseas transfer restrictions

Section 1034 of the House-passed NDAA will require the Secretary of Defense to make certain “certifications” before transferring any of the detainees, including the (approximately) half who already have been cleared for transfer to nations overseas. As the President wrote in his veto statement, these pre-transfer requirements would be “more onerous” than even the “unwarranted” restrictions imposed by current law.

Steve fears that they’re worse than that — that the new certification conditions “would make it all-but impossible for the President to transfer any detainee who has been cleared for release.” I’m not so sure about that. The principal innovations in section 1034 (compared to current law) are that the Secretary must provide more information to Congress, and he must certify that the nation to which we are transferring a detainee “has agreed to share with the United States any information that is related to the individual.” I don’t have a good sense of whether and to what extent these new conditions will have a material impact on the ability of the Executive to transfer detainees. I have spoken to several informed people who doubt the practical impact will be very substantial; but their assessment is necessarily tentative, mostly because it’s difficult to predict how often, if at all, receiving nations will refuse to “agree to share with the United States any information that is related to the individual.”

Because the President has decided to sign the NDAA, I’m assuming (or I hope, anyway) he has concluded that the new conditions will continue to permit him to transfer all, or virtually all, of the first half of the detainee population before the end of his Term. If that turns out to be the case, then the real impact of the NDAA will be with respect to the other GTMO provisions in the NDAA — those that would prevent relocation of the final few dozen detainees population to custody in the United States.

U.S. relocation restrictions

Let’s assume, then, that even under the House-passed NDAA, the President will be able to transfer to other nations approximately half of the current GTMO population. That would still leave the other half of the detainees — probably about four or five dozen — who are unlikely to be cleared for transfer during the armed conflict with al Qaeda (for reasons I described in my first post).

The only feasible way to close GTMO during this President’s term would be to relocate these detainees to custody in the United States, perhaps for the duration of the armed conflict with al Qaeda. Sections 1031 and 1032 of the new NDAA, however — like current law — will prevent that from happening. Section 1031 will flatly prohibit the use of any funds available to DOD to be used “to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions” any of the GTMO detainees; and section 1032, in turn, will prohibit the use of such funds “to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense.”

Reportedly, the Administration will convey to Congress later this week a “plan” that would describe the details of a detainee relocation. If the reports are accurate, the plan will analyze the prospects, and costs, of holding the detainees at seven different sites, including the U.S. Disciplinary Barracks and Midwest Joint Regional Corrections Facility at Leavenworth, Kansas; the Consolidated Naval Brig in Charleston, South Carolina; the Federal Correctional Complex in Florence, Colorado; and the Colorado State Penitentiary II in Canon City, Colorado, also known as the Centennial Correctional Facility.

After reviewing that plan, Congress should vote to repeal the restrictions in sections 1031 and 1032 of the new NDAA because, as the President has repeatedly stressed, those restrictions, by effectively ensuring the continued operation of the GTMO facility, are extraordinarily damaging to our national security and diplomatic relations: As he wrote in his recent veto statement, “the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.” Moreover, as Senator Feinstein emphasized in her recent Op/Ed, Guantánamo also “has cost us billions of dollars.”  They are hardly alone in these views–back before the issue became a political cudgel, there was bipartisan agreement on the question:  Former President Bush, for example, wrote in his memoir that GTMO is “a propaganda tool for our enemies and a distraction for our allies.”

Those are certainly reasons enough for Congress to repeal the restrictions and thereby allow the relocation of the final few dozen detainees. Would there be any downsides to such a move? I can think of only one — namely, that if and when the detainees are held here in the United States, without the taint of GTMO, that might make future presidents more willing to ratchet up military detentions again, in a way that’s almost unthinkable now.*  (President Obama himself almost certainly wouldn’t use the long-term military detention option; but who knows what 2017 will bring?)  Ironically, however, that prospect ought to appeal to some Republican legislators, such as Senators Graham and Ayotte, who have been strong proponents of increased military detention but who have also been reluctant to permit such detention in the United States.

Alas, I think it’s very unlikely that many, if any, Republicans will be willing to vote to repeal the restrictions — even if such repeal would make future military detentions more likely — especially in light of a “petition and digital ad campaign” that the Republican National Committee has just commenced “to hold [Hillary] Clinton accountable for supporting a dangerous plan the American people oppose.” According to the RNC, that campaign:

will initially target voters in Colorado, Kansas, South Carolina, North Carolina, Iowa, Missouri, and Georgia, before expanding to a national campaign. The campaign will run statewide and in nearby states with an emphasis on independent voters who live near the proposed locations for holding Gitmo terrorists. Other efforts over the coming days and weeks will include local targeted campaigns, robocalls, and sustained efforts within communities in these states to hold Hillary Clinton and Barack Obama accountable. The RNC will also target Democrat Party officials on the federal and local level.

It’s noteworthy, I think, that neither the RNC’s announcement nor the petition itself offers a single substantive reason why GTMO should not be shuttered, other than the bogeyman that there’d then be “terrorists . . . on U.S. soil.”

That’s it: The RNC campaign is built entirely on cynical fear-mongering with no basis in fact. Federal prisons already hold numerous al Qaeda leaders and operatives, and other terrorists, including Zacarias Moussaoui, Richard Reid, Umar Farouk Abdulmutallab, Ali al-Marri, Jose Padilla, Ahmed Ghailani, and Omar Abu Ali—and none of them has been spotted wandering about freely on “U.S. soil.” Moreover, as the Attorney General and Secretary of Defense explained in a Report submitted to Congress last year, “existing statutory safeguards and executive and congressional authorities [would] provide robust protection of the national security” if the GTMO detainees were to be relocated to custody in the United States.

Despite the absence of any genuine, substantive harm that might realistically be caused by relocation, I can’t imagine any House Republicans (and perhaps not any Republicans in the Senate, either) voting for repeal of the restrictions, now that the RNC has determined that any legislator voting to lift the restrictions will be “targeted” in the election with fear-mongering ads warning of terrorists at loose in the streets. (That RNC campaign also explains why it’s reasonable for the President not to veto the NDAA. Such a veto would put congressional Democrats to the choice of either voting to override the President or making themselves an easy target of the RNC’s coming attacks ads. Perhaps forcing the Democratic legislators to make that thankless choice — with the possible electoral fall-out in contested elections — would be worth the candle if there were a real prospect of a “clean” NDAA at the end of the process. But if that’s not a realistic possibility — and there’s no reason to think it is, in light of concerted Republican recalcitrance — then a veto would likely result in much more harm than good or, a best, a simple override.)

What this means, unfortunately, is that unless and until the Republicans conclude that there’s no political advantage to be gained in opposing the idea of allowing the final few dozen GTMO detainees to be relocated to detention in the United States, it’s hard to see anything the President can do to accomplish the closure of GTMO — other than to continue to try to convince the electorate that such a detainee relocation would not raise any serious national security risks.

In light of this depressing state of affairs, some supporters of the effort to close Guantánamo have recently suggested that the President can simply invoke his authority as Commander in Chief, disregard the statutory limits, and move the final few dozen GTMO detainees to the United States for military detention. As I’ll explain in my final post, however, I don’t think that “solution” is legally available — indeed, I strongly doubt it’s even being given serious consideration in the White House.

Part One

Part Three

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* [UPDATE] I’m assuming here that the conditions of confinement in the United States would not be materially more restrictive or harsh than they have been at Guantánamo–which presumably would be more than sufficient to prevent any escape opportunities.  Of course, if the only way to relocate the detainees were to impose unreasonable conditions on their detention, then that would be another reason to be skeptical about the relative value of such a relocation. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).