[UPDATED] GTMO at the End of the Obama Administration: 31 uncharged detainees remain

With today’s transfer of four more detainees to the UAE and Saudi Arabia, President Obama will leave office tomorrow with 31 uncharged individuals remaining detained at the Guantánamo Bay Naval Base, potentially for the duration of U.S. hostilities with al Qaeda.  (Ten others have been charged in the military commissions system, of whom seven are awaiting trial.)  Below is the President’s final letter to congressional leadership regarding GTMO.  He is right that Congress’s refusal to permit him to close the facility “make[s] no sense.”

Of the 31 remaining uncharged detainees, five have been cleared for transfer either by the 2009 Task Force or by the PRB, based on a unanimous assessment of all agencies that their further detention is no longer necessary to protect against a significant threat to the security of the United States:  Ridah bin Aleh al Yazidi (from Tunisia, ISN #38); Abdul Latif Nassir (from Morocco, ISN #244); Mjuayn al-Din Jamal al-Din Abd al Fadhil Abd al Sattar (unknown home nation, ISN #309); Sufyian Barhoumi (from Algeria, ISN #694); and Tawfiq al Bihani (from Yemen, ISN #893).  [UPDATE]:  And two of the other 26 detainees, both from Yemen, are slated for follow-up full PRB reviews:  Omar Muhammad Ali al-Rammah (ISN #1017) (review scheduled for Feb. 9); and Sharqawi Abdu Ali Al Hajj (ISN #1457) (review not yet scheduled).

As I’ve previously explained, this is about as close as President Obama could possibly have gotten to actually closing the detention facility at GTMO, in light of statutory restrictions that Congress has needlessly and unwisely imposed.  (See my three-part post — Part OnePart Two, and Part Three.)  As I discuss in the first of those posts, however, the remaining small population at GTMO is the only blot on what is otherwise a remarkable transformation:  the President’s policies and practices have ensured not only that long-term military detention is exercised in accord with domestic and international law, but that such detention has, in fact, come to be the rare exception rather than the rule—indeed, virtually a dead letter in U.S. practice.  It is now up to the new President whether and to what extent that fundamental transformation endures.

The President sent this letter today to the Speaker of the House and President Pro Tempore of the Senate, which was accompanied by a final memorandum on “Obama Administration Efforts to Close the Guantanamo Bay Detention Facility”:

 

TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
AND THE PRESIDENT PRO TEMPORE OF THE SENATE

January 19, 2017

Dear Mr. Speaker: (Mr. President:)

For 15 years, the United States has detained hundreds of people at the detention facility at Guantanamo Bay, a facility that never should have been opened in the first place. Rather than keeping us safer, the detention facility at Guantanamo undermines American national security. Terrorists use it for propaganda, its operations drain our military resources during a time of budget cuts, and it harms our partnerships with allies and countries whose cooperation we need against today’s evolving terrorist threat. By any measure, the costs of keeping it open far exceed the complications involved in closing it.

As President, I have tried to close Guantanamo. When I inherited this challenge, it was widely recognized that the facility — which many around the world continue to condemn — needed to close. Unfortunately, what had previously been bipartisan support for closure suddenly became a partisan issue. Despite those politics, we have made progress. This Administration established a comprehensive, interagency review process to assess whether the transfer of a detainee is in the national security interest of the United States. Under this rigorous process, we have transferred 196 detainees from Guantanamo with arrangements designed to keep them from engaging in acts that pose a threat to the United States and our allies. Of the nearly 800 detainees at one time held at the facility, today only 41 remain.

The Department of Defense has also provided the Congress with a comprehensive plan to finally close Guantanamo once and for all. In addition to calling for us to continue to identify and effectuate secure transfer opportunities, it calls for the continued periodic review of the threat posed by individuals still detained, the use of all legal tools to deal with the remaining detainees still held under law of war detention, and the identification of a secure location in the United States to hold remaining detainees who are subject to military commissions or who we have determined must continue to be detained because they pose a continuing significant threat to the United States. I have included an update to that plan here.

The restrictions imposed by the Congress that prevent us from imprisoning detainees — even to prosecute and secure a life sentence — in the United States make no sense. No person has ever escaped one of our super-max or military prisons here, ever. There is simply no justification beyond politics for the Congress’ insistence on keeping the facility open. Members of Congress who obstruct efforts to close the facility, given the stakes involved for our security, have abdicated their responsibility to the American people. They have placed politics above the ongoing costs to taxpayers, our relationships with our allies, and the threat posed to U.S. national security by leaving open a facility that governments around the world condemn and which hinders rather than helps our fight against terrorism.

If this were easy, we would have closed Guantanamo years ago. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to bring it to a responsible end. Once again, I encourage the Congress to close the facility and permit more of our brave men and women in uniform serving at Guantanamo Bay to return to meeting the challenges of the 21st century around the globe. There remains bipartisan support for closing Guantanamo and we can do so in a responsible and secure way that also saves the American taxpayer money. Guantanamo is contrary to our values and undermines our standing in the world, and it is long past time to end this chapter in our history.

Sincerely,

BARACK OBAMA

 

Image: John Moore/Getty 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).