President Barack Obama finally broke his long silence on Tuesday on the need to close Guantánamo. Echoing comments he made four years ago — when, on his second day in office he promised to close the facility within a year — he said “Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. . . . It needs to be closed.”
Welcome words, but it’s unlikely they will brighten the day of the 100 men currently on hunger strike at the facility. Twenty-one are currently being tube-fed, a procedure that entails being put in a restraint chair while a lubricated plastic tube is inserted down a detainee’s nose and into his stomach. (Detainees are then held in the chair for approximately two hours to make sure the liquid supplement fed into the tube is digested.) Obama’s words might carry more resonance with those who have been lobbying for closure of the facility for the better part of a decade, though perhaps more so if he didn’t seem so keen to apportion blame elsewhere.
In his remarks, made in response to questions at the White House press briefing, Obama pointed the finger at Congress saying it had been “determined” not to let him close the facility, and that he promised to “re-engage with Congress” on the issue. While it’s true that Congress has certainly placed obstacles in the way of closing the facility, such as restricting the use of funds to transfer detainees to the United States for trial, there are still a number of steps the Obama administration could have taken — and can still take now — to begin closing the facility and ending indefinite detention without trial.
For one, it can begin to transfer the 86 of the 166 detainees at Guantánamo already slated for release to their home or third countries. In 2011 and again in 2012, Congress enacted some restrictions on the transfer of detainees from the facility, but those restrictions are not insurmountable. They require receiving countries to take certain steps to ensure that those being transferred do not engage in terrorist activity and that the secretary of defense certify such steps have taken place.
If, however, the secretary of Defense cannot, for one reason or another, certify those steps have been taken, he can waive the certification requirement in lieu of “alternative actions” — a term which has no clear legal or procedural definition. The only guidelines are that they “substantially mitigate” the risk that the detainee being transferred may engage in terrorism. Clearly then, the administration’s ability to transfer detainees out of Guantánamo exists now, even with congressional restrictions. And with Obama again reiterating that keeping Guantánamo open harms U.S. security, the certification — and even more so the waiver — process seems to offer a clear path forward to emptying the facility of more than half its prisoners, if not closing it down.
Yes, there is some risk that detainees released from Guantánamo may engage in terrorism. The government has stated that some of the detainees released from Guantánamo have already been involved in terrorism, though the number is disputed and the government refuses to publicly release the information on which it is basing those claims. The director of national intelligence claims (though these claims have been discredited) that about 16 percent of the approximately 600 people released from the facility over the past 12 years are confirmed, and 11 percent are suspected, of having engaged in terrorism after their release. Independent, credible analyses of those figures by researchers at the New America Foundation indicate the number is more like 6 percent, or 1 in 17.