61

That’s how many individuals the Department of Defense continues to detain at the Guantánamo Bay Naval Base after the recent transfer of 15 detainees to the United Arab Emirates.  Twenty of the remaining detainees have been cleared for transfer.  [Numbers below updated.]  Eight others are awaiting the results of a Periodic Review Board hearing; PRB hearings are scheduled for another three (Aug. 18 and 23, Sept. 8); and two PRB dates are yet to be set.  Criminal charges have been brought against ten; the PRG has denied clearance of 18 more.  Here a helpful list and chart identifying the remaining detainees and their statuses, from the indefatigable Carol Rosenberg.

Because it is likely that the Administration will transfer between 20 and 33 of the remaining detainees, we can expect that the GTMO population of uncharged detainees will be between 18 and 31 come January 20, 2017.

A recent article in the New Yorker is entitled “Why Obama Has Failed to Close Guantánamo.”  It offers a detailed account of how (mostly) career officials at the Department of Defense, who oppose the President’s goal of radically reducing the number of indefinite detainees, have interposed one obstacle after another, for many years, to delay the transfer of detainees from GTMO; how previous Secretaries of Defense have (until recently) been too reluctant to take the steps necessary to permit such transfers; how the President and White House officials have been relatively unsuccessful–until recently–at prompting the Department to move more quickly; and how things are finally moving rather rapidly now, in the final months of the Obama Administration.

Even assuming, however, that the account, by Connie Bruck, is accurate (from all I’ve heard, her account is largely correct, even if a few of the details aren’t), what the New Yorker article fails to do is to explain, as its title promises, how the President might have successfully closed Guantanamo before the end of his tenure.

There’s every reason to think that the GTMO population would be precisely the same next January 20, 2017–as explained above, that’ll likely be between 18 and 31 uncharged detainees–even if DOD had not been intransigent, and even if the other Executive branch obstacles Bruck describes had not been present over the past few years.  The effect of those things, in other words, was to delay the reduction in the GTMO numbers, but not to change the eventual total.  That’s no small thing, of course — there has been a very real, and deeply unfortunate, human cost to the delay, and I don’t mean to minimize those costs.  But the DOD obstructionism ultimately did not have a material effect on the composition of the GTMO population at the end of the Obama Administration, or on the fact that the detention facility remains open.

The reason the President can’t close GTMO, as I described earlier in a three-part post (here are Part OnePart Two, and Part Three), is instead nothing more than simple, and unjustifiable, congressional intransigence.

Perhaps after the election, if the population of uncharged detainees is three dozen or fewer–at an annual cost of millions of taxpayer dollars per detainee–Congress will finally find the will and good sense to lift the restrictions on transferring those final few detainees to the United States.  (Such a transfer might even facilitate further prosecution of some of the detainees in Article III courts.  And it would allow for greater access to, and transparency of, the ongoing commissions trials in the United States.)

Only then could GTMO be closed. 

Filed under:
About the Author(s)

Marty Lederman

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