Senate Passes Bill to Help Close Guantánamo; Now President Obama Must Act

22.11.13

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

It’s rare that there is good news about Guantánamo, and even rarer that the good news involves Congress. However, on Tuesday, the Senate accepted a version of the annual National Defense Authorization Act, which originated in the Senate Armed Services Committee, and was put forward by the chair, Sen. Carl Levin, along with Sen. John McCain.

The Levin-McCain version of the NDAA is intended to make it much easier than it has been for the last three years for President Obama to release cleared prisoners from Guantánamo, and to seriously revisit his failed promise to close the prison once and for all, and we note, with thanks, the efforts of Senators and officials in the Obama administration to secure this victory.

This important version of the NDAA contains provisions relating to Guantánamo which allow President Obama to release prisoners to other countries without the onerous restrictions imposed by Congress for the last three years. These restrictions have led to the number of released prisoners dwindling to almost zero, even though 84 of the remaining 164 prisoners were cleared for release from the prison in January 2010 by a high-level, inter-agency task force appointed by President Obama shortly after he took office in 2009.

Congress had obliged the president and the defense secretary to certify that any prisoners they wanted to release would, after release, be unable to engage in terrorist activities against the US — a certification that was, frankly, impossible or almost impossible to make. Lawmakers had also banned the release of prisoners to any country where there was an alleged claim of recidivism; in other words, of a former prisoner “returning to the battlefield.”

As the Washington Post explained yesterday, supporters of Guantánamo regularly draw on, and distort, recidivism claims made by the DoD or the Office of the Director of National Intelligence, like Sen. Saxby Chambliss (R-Ga), during the Senate debate on the NDAA. Conflating two figures — those for ex-prisoners confirmed of recidivism, and those suspected of doing so — Sen. Chambliss claimed that the recidivism rate is “nearly 29 percent” of former prisoners, when in fact only 16 percent are “confirmed” by the government. Moreover, evidence has never been provided to back up more than a fraction of these claims, and in independent research, which we endorse, the New America Foundation found that a more realistic recidivism rate was just 8.8 percent.

In the revised version of the NDAA passed by the Senate, the defense secretary is no longer blocked by these huge obstacles, and is only required to “substantially mitigate the risk” of any released prisoner “engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests.” The defense secretary is also permitted to release prisoners if he determines that “the transfer is in the national security interest of the United States.”

The Levin-McCain version of the NDAA also allows the president to transfer prisoners to the US mainland to face trial, or to be imprisoned, thereby making the closure of Guantánamo possible. This version of the NDAA also allows prisoners to be temporarily moved to the US mainland for medical treatment that cannot be provided at Guantánamo.

The struggle to make progress towards the closure of Guantánamo is not over, of course. In June the Republican-controlled House of Representatives passed a version of the NDAA that still includes the onerous transfer restrictions, and that also introduced a complete ban on releasing any prisoners to Yemen. This was a direct snub to President Obama, who, in a major speech on national security issues in May, dropped his own ban on releasing any cleared Yemeni prisoners, who make up two-thirds of the 84 clear prisoners. This was a ban he had first imposed in January 2010, after a Nigerian man recruited in Yemen, Umar Farouk Abdulmutallab, had tried and failed to detonate a bomb in his underwear on a flight from Europe to the US.

In the Senate on Tuesday, Senators also voted down, by 55 votes to 43, an amendment to the NDAA by Sen. Kelly Ayotte (R-NH), which was similar to the House version, and would have maintained the current ban on moving prisoners to the US for any reason. Sen. Ayotte’s amendment would also have made permanent the current restrictions on transferring prisoners to other countries, as well as explicitly banning the release of any prisoners to Yemen. This defeat showed the extent to which Senators have understood that the status quo on Guantánamo — largely of their own making, although with a lack of robust opposition from President Obama — is no longer acceptable.

This is a far cry from the position taken by Senators for the last four and half years, beginning in May 2009, when the Senate voted, by 90 votes to 6, to eliminate $80 million from planned legislation intended to fund the closure of Guantánamo, and to specifically prohibit the use of any funding to “transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States.”

The two versions of the bill will now have to be reconciled in conference, where tough negotiating will be required on the part of the supporters of the Senate’s version. Here at “Close Guantánamo,” we believe that President Obama needs to speak out very publicly in support of the Senate version of the bill, but we also wish to stress that, whatever Congress decides, the president already has the power, through a waiver in the existing legislation, to bypass Congress and release prisoners if he believes it to be in America’s national security interests to do so.

On this point, the president clearly does believe that releasing cleared prisoners and revisiting his failed promise to close Guantánamo is “in America’s national security interests,” because, in April, speaking about Guantánamo, he said, “I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”

Tom Wilner, the co-founder of “Close Guantánamo,” and counsel of record for the Guantánamo prisoners in their Supreme Court cases in 2004 and 2008, noted this when he said, following the result, “The vote in the Senate on Tuesday shows progress in the attitude toward Guantánamo. But it should be clearly understood that the president has the power now to send these men home and he should use his existing authority to do so.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

19 Responses

  1. Andy Worthington says...

    Yesterday, when I posted the link on Facebook to the version of this article published on “Close Guantanamo,” Holly Marie wrote:

    Bi-partisan effort, too.

  2. Andy Worthington says...

    Yes, that’s important, Holly. Very rare in these days when the GOP generally tries to derail anything and everything Democrats propose. Mainly, though, it was Democrats who came on board – finally. Human Rights First noted, “Senators McCain, Flake (R-AZ) and Paul (R-KY), voted against Senator Kelly Ayotte’s (R-NH) amendment that would have restricted the ability to transfer Guantanamo detainees. Senators Baucus (D-MT), Manchin (D-WV) and Stabenow (D-MI) also voted against Senator Ayotte’s amendment, having supported it last year, because the NDAA provides a common sense approach to resolving GTMO.”
    More here: http://www.humanrightsfirst.org/2013/11/21/retired-generals-and-admirals-make-their-voices-heard-on-guantanamo/

  3. Andy Worthington says...

    Holly Marie wrote:

    Senators Stabenow and Levin are both my senators here in Michigan. In any case, anyone with a conscience should close this abomination down. If another country did such a thing, Americans would be screaming about the human rights abuses. It’s absolutely insane it has remained open this long.

  4. Andy Worthington says...

    Yes, I absolutely agree, Holly. Once you step back from it and look at it objectively, there are no excuses whatsoever for the shameful game of political football it has become.

  5. Andy Worthington says...

    Holly Marie wrote:

    And, in the meantime they are sitting there like animals, no end in sight. Don’t get me wrong, I am patriotic for my country and lost friends on 9/11, but this is disgraceful to have them sitting there over 10+ years without charges…it makes the US as barbaric as anyone else.

  6. Andy Worthington says...

    Yes, it’s why what Bush, Cheney and co did after 9/11 was so wrong, Holly, and needs dismantling, because it’s still effectively in place, a system of holding and abusing men for whom no objectively acceptable explanation has ever been given for their imprisonment. It’s not acceptable to hold people without justifying it, which is why, until 9/11, if you wanted to hold someone prisoner they had to be either criminal suspects, facing federal court trials, or prisoners of war, protected by the Geneva Conventions. We need to get back to that.

  7. Andy Worthington says...

    Holly Marie wrote:

    Bush and Cheney used 9/11 as an excuse to do MANY things that are simply abominable. It’s unbelievable the lengths they went to to bend every single law regarding humane treatment, privacy issues, rules of combat and invading two countries for their “war” on terror. I still cannot think about 9/11 without tears, it was a traumatic day. But, it wasn’t an automatic license for the freak show that came after. I hope the world knows, there are patriotic Americans who think what Bush and Cheney did was 100% wrong. Andy, when they announced the Afghanistan and Iraq invasions, I was physically ill…hard to believe people went along with this madness and cruelty. And, that they LIED about WMD, totally manufactured this ‘evidence’, goes without saying that they deserve to burn in Hell for eternity for the innocent lives lost (Iraqis and Americans) for their games. Just sickening.

  8. Andy Worthington says...

    Yes, what happened on that day was absolutely awful and unforgiveable, Holly, but it didn’t take long for people concerned with an appropriate response to realize that Bush, backed up by Cheney and Rumsfeld, who had both served under Nixon, Ford and Bush Sr., and believed in unfettered executive power, were dangerous people to have in charge at such a time.
    I’m sure most of the world knows that there are tens of millions of Americans who don’t believe in what Bush and Cheney and co did, but to confirm it there needs to be a thorough repudiation of the events of that time. Guantanamo is part of it, of course, but so is the wreckage of domestic and international laws and treaties, the legacy of the program of extraordinary rendition, black sites and torture, the illegal wars, and now the drone killings.

  9. Andy Worthington says...

    Charmaine Dolan wrote:

    Gawd those flags look eerie …

  10. Andy Worthington says...

    Yes, definitely a bit of a flag overdose going on there, Charmaine. I’m always suspicious when too much flag-waving goes on. There’s been an increase in flag activity here in the UK in the last few years – primarily because of the Royal Wedding and the Olympics, all stoked furiously by the wretched Tories and our right-wing media – and the effect hasn’t been good. The increase in patriotism only seems to mean that people are more stupid and cruel than formerly.

  11. Andy Worthington says...

    Gulka H-eva wrote:

    Andy thank you so much for your care, thought for these prisoners, and for your help

  12. Andy Worthington says...

    You’re welcome, Gulka. Thank you for your concern for the prisoners, and for your supportive words.

  13. Andy Worthington says...

    On Facebook, after I posted the newsletter I send out to subscribers to the “Close Guantanamo” campaign, which dealt with this article, J.d. Gordon wrote:

    Thanks, Andy. Question: What’s next if & when Gitmo does close? How will you & friends defend Al Qaeda & Taliban then? Expand Shariah Law zones in England? Just curious…

  14. Andy Worthington says...

    Susan Chunco wrote:

    Thanks, J.d. Gordon. I needed a chuckle. lol

  15. Andy Worthington says...

    Pauline Kiernan wrote:

    Sharing x

  16. Andy Worthington says...

    What a ridiculous question, J.d. I’m defending the importance of the law, not defending al-Qaeda and the Taliban. If all that wretched cruel, illegal nonsense with the torture and the renditions and the CIA black sites hadn’t taken place, KSM and others accused of acts of international terrorism would have been tried years ago, and, I imagine, convicted if untainted evidence was produced. As for the soldiers in Guantanamo, they would have been held, appropriately, as prisoners of war protected by the Geneva Conventions, and all the others – the humanitarian aid workers, missionaries and migrants bought for bounties – would never have been held for long in the first place. This is all about the laws, J.d., on which your country was supposedly founded, and about human rights, not your fantasies about where you think my sympathies lie. Or, to put it another way, it’s not about whatever I think about Islam, it’s about human rights and the law.

  17. Andy Worthington says...

    Thanks, Susan. Nice comment. Thanks also, Pauline, for sharing.

  18. Andy Worthington says...

    Pauline Kiernan wrote:

    Absolutely agree with you Andy. ‘This is all about laws… and human rights’. Keep on keeping on Andy. You are an inspiration. P xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

  19. Andy Worthington says...

    Oh, that’s lovely, Pauline. Thanks!

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