Closing Guantánamo: Before You Accuse Congress, Take a Look at Your Administration

Five years ago today, President Obama issued Executive Order 13567, which established the Periodic Review Board (PRB) process to review every “forever” detainee in Guantánamo who was not facing military commission charges. The order required the reviews to take place “as soon as possible but no later than 1 year” from the date of the order. Thus, it is also the fourth anniversary of failing to achieve that directive.

The more things change, the more they stay the same. The President continues to call for the closure of Guantánamo. Congress continues to oppose it. The facility remains open. While President Obama seeks to portray Congress as the villain behind his failed campaign pledge to close Guantánamo, there is plenty of blame to go around and good reason to assign it at both ends of Pennsylvania Avenue.

So, on this anniversary of EO 13567, I propose four questions Americans should ask the administration when considering this issue:

1. Where is the “plan” to close Guantánamo?

Webster’s dictionary defines “plan” as “a detailed scheme or method for the accomplishment of an objective.” The document the Defense Department submitted to Congress last month is mostly a rehash of Guantánamo detention history and ongoing relocation efforts. That is followed by a cursory conceptual vision containing little or no new information other than the fact that 13 sites in the United States have been, or are being, considered.

I was involved in a lot of planning efforts during my military service — no one I worked for would ever have accepted this as a “plan.” Which leads me to a sub-question: Is the administration in violation of the express congressional mandate to submit a “plan” by February 23?

2. What have you been doing for the last five years?

EO 13567’s mandated PRB process has been woefully under-completed. On top of the one-year timeline to complete every “forever” detainee’s initial review, the executive order required a subsequent full PRB review every three years, with intervening file reviews every six months. By this time last year, every detainee who was not cleared in the first round should have received a second look, plus five more file reviews in the interim.

What has actually happened according to DOD’s PRB website is that just 27 detainees have had hearings; results are available for 22 with five still pending. (Another detainee is scheduled to have his first PRB hearing tomorrow, so he will soon join the “pending” list.) These pending reviews took place as long ago as July 14, 2015 — despite the order’s mandate that “[t]he PRB shall make a prompt determination.”

In the 22 now-decided initial hearings, the PRB approved 16 men for release or transfer. To reach this result it had to unanimously conclude that detention of each of these 16 men was not “necessary to protect against a significant threat to the security of the United States.” That is a 70-plus percent clearance rate on the first go-around, but it’s far from the end of the story. The six detainees slated for continued detention by their initial PRBs subsequently began receiving the mandated file reviews. Candidly, I would have expected these paper proceedings to be largely pro-forma, but in four of the five cases with posted results, the Board called for new hearings well before the three-year interval elapsed. Even more surprisingly, all three of the second round hearings conducted to-date removed the detainee from the “forever” category. As a result, of the “forever” detainees whose reviews have been finalized, the PRB has now moved 19 of the 22 (86 percent!) into the releasable/transferable categories. So much for these detainees being the “worst of the worst!” And after 14 years of Guantánamo detention we’re still finding that some of these men have been held based on flawed information.

But here’s what I find most appalling. The current detainee population is 91 men, 36 of whom are cleared for transfer or release. Just 10 more are in the military commission system (three are “post-conviction” detainees and seven have been charged but are mired in multi-year pretrial processes). That leaves 45 men who are not currently cleared (i.e., the “forever detainees” still requiring periodic review). Remember that only eight of those have ever completed a PRB review (the three who are approved for detention and the five waiting to hear their results). Put another way, 37 men still have not had a single live hearing under this administration despite the Commander-in-Chief’s lawful order that this must have happened four years ago. Let’s be clear about this: At best, 42 percent of those mandated to receive hearings have gotten them. As I said, there’s plenty of blame to go around on Guantánamo, but the slower-than-plodding pace of of the PRBs can’t be placed on Congress.

3. What number of detainees are we really dealing with?

The administration’s February “plan” suggested that somewhere between 30 and 60 detainees will need to be accommodated at a new facility on an ongoing basis, but the exact number is unknown (not least because of the administration’s failure to conduct all of the required PRB hearings). If everyone yet to receive a hearing or awaiting results is approved for “law of war detention” or prosecution — which seems extremely unlikely — the largest possible number of detainees who would need accommodation elsewhere if Guantánamo closed is 55. At the other extreme, if the PRB cleared everyone still pending, the detainee population would only be 13 (the three post-PRB “forever detainees” and 10 under commission jurisdiction). If the PRB continues to clear detainees at its current rate, the “forever” detainee pool will be reduced to under a dozen, for a total population of fewer than 22 to be housed stateside. So unless the PRBs are being strategically scheduled in reverse order of perceived threat (which seems unlikely given that the few continued detention decisions seem to be randomly distributed), the final number of detainees slated for law of war or post-conviction detention will probably be under 30, and possibly even fewer than 20.

4. Why are Guantánamo detention costs so high?

The administration made three basic arguments for closing Guantánamo in its “plan” — it’s a recruiting tool for terrorists, it hurts relations with friendly countries, and detention there is so expensive that we can save substantial sums by moving the detainees. With respect to the third point, the high cost of Guantánamo is only partially due to the costs of moving personnel, and material, from the US to an isolated Cuban facility. The real cost driver, as The Miami Herald reports, is staffing a detention facility for 91 men with 2,000+ US military personnel and contractors, including 1,300(!) guards. (Federal prisons have an overall inmate-to-staff ratio of approximately 4-to-1 compared to Guantánamo’s 1-to-22.) That’s simply absurd. If the President or Secretary of Defense mandated efficiencies, surely we could reduce the Guantánamo staff to something like one-third of the current total, if not less. Either DOD leadership is asleep at the wheel and needs to be held accountable for fraud, waste, and abuse, or else the cost of running GTMO is deliberately being kept artificially high to bolster the math in favor of closure. In either case, substantial tax dollars are being squandered while doing nothing to keep us safer.

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I’m no fan of this Congress. And I voted for President Obama. Twice. But having been in charge for more than seven years, the President must assume ownership of at least part of this debacle. Congress has been most unhelpful, but the administration has failed to exercise its own authority to make real progress on this issue. Criticism of the situation at Guantánamo today should thus start with the White House and flow through the Pentagon before targeting Capitol Hill. 

About the Author(s)

David Glazier

Professor of Law and Lloyd Tevis Fellow at Loyola Law School, Formerly Served as a U.S. Navy Surface Warfare Officer