Senate to Take Critical Vote on Guantanamo’s Fate

The Senate is poised – possibly as early as this afternoon – to take one of the most important national security votes in years.  As Daphne and Thomas have noted, at issue is the ability of this and subsequent Presidents to take steps to close down Guantanamo and, more broadly, to exercise his commander-in-chief powers freed from the constraining and ineffective micromanagement by Congress.

Specifically, the National Defense Authorization Act, which passed with bipartisan support out of the Senate Armed Services Committee, would eliminate a range of restrictions on transferring detainees out that have been cleared for transfer from Guantanamo.  To be clear, even these provisions do not give the President free rein: The Secretary of Defense still must first determine that the individual is “no longer a threat,” that steps are being taken to mitigate the risk that he will not engage in terrorist or other hostile activity, and that the transfer is the U.S.’s “national security interest.”   These are not easy standards to meet – particularly given the difficulty of establishing a no-threat threshold.   But, as the Administration has stated, these are the same standards that the Executive would apply, even in the absence of a mandate from Congress.  Importantly, they eliminate the even more restrictive bars on transfers that make it extremely difficult (and in some cases impossible) to move detainees out, even when the President determines it is in our national security interest to do so.   The Act also lifts a blanket ban on transfers to the United States, instead permitting detainees to be brought to the United States under limited circumstances: for emergency medical care, trial, or continued detention only.

Some may wonder why these provisions are important, and why I even think these provisions are a good thing.  After all, a year ago, I published an op-ed in the New York Times titled “Don’t Close Guantanamo.”  I have, since then, received numerous media calls by outlets eager for the perspective of a liberal-turned-conservative.  But it turns out that few outlets actually read past the title – so much so that they generally rescinded the offer when they heard my actual views.   For those who read the op-ed, it will not be news that I strongly object to a perpetual Guantanamo.  The op-ed did not argue for its permanence.  Rather, I was responding to what I perceived to be the simplistic rallying cry of “close Guantanamo,” without any realistic plan in place – and my fear that many, if not most, of the detainees would simply be brought to the United States to be placed in worse living conditions, locked in their cells 22-hours a day.  (Remember: I wrote this at a time that was pre-hunger strike, when the vast majority of detainees were living in what was akin to a communal living camp, able to freely move in and out of their cells for the greater part of the day.)  I instead argued that we should focus the conversation on the end of war – at which point the underlying legal justification for the detentions (whether in the U.S. or Guantanamo) would end.   Only in that situation, I thought, could we be sure that vast numbers of Guantanamo detainees would not simply be moved from one system of indefinite detention to another one – and one that was worse.

But what most readers missed – and what perhaps I failed to sufficiently highlight – is that even in the interim, we need to do something about the eighty-some detainees that have long been cleared for transfer, yet languish in Guantanamo.  The Senate’s current version of the NDAA makes an important contribution to that goal.  Specifically, it gives the administration greater flexibility to begin transferring these detainees out (although to be clear, many of these transfers also could have happened under current law, so long as a series of onerous certification requirements were met.)  Coupled with the reports of a possible Yemeni rehabilitation program in the works, the recent appointment of Special Envoys for Guantanamo at both the Department of Defense and State, and the reports of a comprehensive plan for closure of Guantanamo, there is room to think that such transfers might really happen.  The possibility of prosecuting detainees in the United States is also key – opening up the possible use of one of the most valuable tools for the long-term incapacitation of at least some subset of detainees.

Counterproposals spearheaded by Senator Ayotte would, however, eliminate these advances –imposing additional, onerous transfer restrictions, eliminating the ability to transfer detainees to the United States, even for prosecution, and completely barring the transfer of detainees to Yemen.  The Senate is poised to vote on some (yet-to-be-determined) combination of these alternative proposals shortly as a proposed amendment to the legislation.

The amendments should be rejected.  We should not forget that as of 2004, the leading Presidential candidates of both political parties were calling for Guantanamo’s closure – calls that have been echoed from military and national security experts across the political spectrum.  To be sure, no solution will be perfect.  No solution will make everyone happy.  But keeping detainees that have been cleared for transfer locked up indefinitely at a cost of $2.7 million per detainee a year is a path that should satisfy no one. 

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About the Author(s)

Jennifer Daskal

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