How Congress Is Finally Helping President Obama to Release Prisoners from Guantánamo

23.12.13

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.

Following three years of presidential inertia on Guantánamo — after Congress imposed onerous restrictions on the release of prisoners, and President Obama refused to spend political capital bypassing or challenging lawmakers — legislative amendments proposed by the Senate Armed Services Committee, chaired by Sen. Carl Levin, have been accepted by Congress. The National Defense Authorization Act for 2014, which contains the amendments, was approved by the House of Representatives last week and passed the Senate by 84 votes to 15 on Thursday night.

The changes, which I wrote about last month in an article entitled, “Senate Passes Bill to Help Close Guantánamo; Now President Obama Must Act,” emerged from the committee in June. They were accepted by the Senate last month, after what the Associated Press described as “a quiet yet effective lobbying push” by senior administration officials, including President Obama’s counter-terrorism adviser Lisa Monaco and Cliff Sloan, the veteran diplomat appointed this year, along with Paul Lewis at the Pentagon, to be an envoy for the closure of Guantánamo. However, the House of Representatives, where Republicans have a majority, had voted to keep all the restrictions in place.

After the Senate vote last month, a compromise had to be thrashed out between the Senate and House Armed Services Committees, in which proposals to remove the onerous restrictions on the release of prisoners survived, but other proposals — allowing prisoners to be brought to the US for detention, for trials or for medical treatment — did not. Without these particular changes, it is still not possible for Guantánamo to be closed, but for now, at least, these amendments make it easier for the president to release prisoners who were cleared for release four years ago by his own high-level, inter-agency Guantánamo Review Task Force — and, perhaps even more importantly, reassure him that he has support for releasing prisoners in Congress.

Describing the situation after the vote, Sen. Levin explained, “About half of the detainees would be detainees that could be transferred to [the] countries from which they come. About half of the detainees would remain in Guantánamo because of the prohibition on transferring them to the United States for detention and for trial.”

Of the remaining 158 prisoners, exactly half — 79 men in total — were cleared for release by the task force, whose final report was published in January 2010. The task force recommended 156 men for release, but although 66 men were freed between February 2009 and September 2010, including dozens who were given new homes in third countries because it was unsafe for them to be repatriated — like the majority of the 22 Uighurs (Muslims from China’s Xinjiang province), who had been seized by mistake — those releases ground to a halt after the release of two men to Germany in September 2010 because of the onerous restrictions imposed by Congress.

Lawmakers had imposed three particular sets of restrictions on the release of prisoners in successive versions of the National Defense Authorization Act over the last three years.

The first prevented the administration from transferring any prisoner unless the Pentagon was prepared to certify that their home country was not “facing a threat that is likely to substantially affect its ability to exercise control over the individual.” Officials in the administration told the Associated Press that was “a bar too high in particular for Yemen,” where Al-Qaeda has a presence.

Significantly, however, until recently President Obama also played a direct role in preventing the release of prisoners to Yemen. After a Nigerian man, Umar Farouk Abdulmutallab, who had been recruited in Yemen, tried and failed to blow up a plane bound for Detroit on Christmas Day 2009 with a bomb in his underwear, President Obama imposed a moratorium on the release of any Yemeni prisoners, which he only lifted in May this year, when, prompted by international criticism precipitated by a prison-wide hunger strike at Guantánamo, he delivered a major speech on national security issues, in which he also promised to resume releasing prisoners, and announced his intention to appoint two envoys to help with the release of prisoners — the positions to which Cliff Sloan and Paul Lewis were appointed.

A second restriction prohibited the transfer of any prisoner to any country where even a single released prisoner has engaged or re-engaged in terrorism — or is alleged to have engaged or re-engaged in terrorism. That includes Afghanistan (home to 17 of the remaining prisoners), Saudi Arabia (home to a handful of individuals, ill-advisedly released by George W. Bush, who went on to become involved in the Al-Qaeda cell in Yemen), and, as the Associated Press reported, Kuwait, “a key US ally that has been lobbying for the return of its two remaining detainees” — Fayiz al-Kandari and Fawzi al-Odah, profiled here — and “has built a still unused rehabilitation center to peacefully reintegrate them.” Kuwait’s inclusion on this list is because in April 2008 a released prisoner, Abdullah al-Ajmi, who was widely regarded as mentally unstable by his fellow prisoners and by lawyers prior to his release in November 2005, blew himself up as a suicide bomber in Iraq.

Whilst it was understandable that these incidents caused concern in Congress, it is unacceptable to introduce a policy of “guilt by nationality,” which would be clearly unjustifiable if, in the domestic prison system, a serious crime committed by, say, a California resident, led to a ban on any prisoner from California ever being released from prison again.

A third prohibition prevented the release of prisoners to countries declared by the US as state sponsors of terrorism, which, the AP noted, prevented the release of “three Syrians who have been approved for transfer but would be barred from going home under the current rules.”

With the lifting of restrictions, so that the administration now only needs to make a determination that a prisoner release is in the national security interests of the US, President Obama needs to make sure that he makes it a priority to release the 79 remaining prisoners cleared for release by his task force, following up on the initiative he has shown in the last four months.

In August, with the restrictions still in place, he released two Algerians, and he has followed up, in the last three weeks, with six more releases — two more Algerians (albeit, unfortunately, two men who didn’t want to return home), two Saudis and two Sudanese prisoners. Of these last two men, one, Noor Uthman Muhammed, was freed under the terms of a plea deal negotiated in his trial by military commission in February 2011, and the other, Ibrahim Idris, is severely mentally ill, and had his release ordered by a judge. As the AP explained, however, “Court ordered transfers are excluded from the congressional restrictions; otherwise the administration would not have been able to send even a debilitated prisoner home to certain countries.”

As we await more releases, we remind President Obama of his words earlier this year. “Guantánamo is not necessary to keep America safe,” he said, adding, “It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”

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.

10 Responses

  1. Andy Worthington says...

    By the miracle of modern technology, I’m posting this on a train from London to Edinburgh, heading north with my family for Christmas. Thanks to everyone liking and sharing it. If you’re in New York, Washington DC, San Francisco or Los Angeles, we may have the opportunity to meet. I’m visiting in January, for a two-week tour to coincide with the 12th anniversary of the opening of the prison on January 11. Further information here, and more to follow soon: https://www.facebook.com/events/1444264625791804/

  2. Andy Worthington says...

    Rebecca Olsen wrote:

    Obama doesnt want to close Gitmo and he uses congress as an excuse. He has dismantled the entire Bill of Rights through executive order why not close Gitmo. He has started several wars without congress why not close Gitmo? Obama is a war criminal who enjoys torturing people. He wont close Gitmo because he doesnt want to no matter what congress does.

  3. Andy Worthington says...

    I don’t entirely agree, Rebecca, but Obama is certainly a profound disappointment, on account of his warmongering as well as his failure to close Guantanamo. Within the administration, there are people – who may or may not include the president – who recognize that continuing to hold men at Guantanamo who were cleared for release by the task force that Obama established shortly after taking office in 2009 isn’t really acceptable, and it’s on this front that we’re now seeing some progress. That said, freeing these 79 men isn’t going to happen overnight, and then the problem is that there are another 79 men, most of whom will never be tried, but who, if they are not facing prosecution, are regarded as too dangerous to release. Even if we get the cleared prisoners released, the next struggle will be to get both the administration and Congress to resolve the cases of these men in an acceptable manner.

  4. Andy Worthington says...

    Debra Sweet wrote:

    Have a wonderful time, Andy, and rest up….because we will be running come January 9-19. Looking forward to it.

  5. Andy Worthington says...

    Thanks, Debra. I will do as much resting as possible before Jan. 8. I think you should too!

  6. Thomas says...

    Merry Christmas!

  7. Andy Worthington says...

    Thank you, Thomas. Happy Christmas to you too!

  8. the talking dog says...

    Merry Christmas to you and your family, Andy! We look forward to seeing you here in a fortnight’s time.

    And now it seems my college classmate the President has now given himself the Christmas present of a reduced GTMO census where only half (and soon presumably less) of my nation’s involuntary house-guests are acknowledged to be incarcerated erroneously, and now he arguably has legal cover to start shipping men home at something greater than the rate of none for the last several years (other than in a coffin, of course). As an aside, it cannot be overstated how desperate certain military elites in my country are that a “status of forces” extension be signed with Afghanistan, to provide (however scant) legal cover to continue the extraordinarily politically useful Guantanamo project by giving us an actual ongoing war from which we can continue to hold non-prisoners-of-war-prisoners-of-war… I would be absolutely surprised if Karzai holds out on this much longer (or more accurately, if he is permitted to).

    Still I confess that it’s gratifying to see fruition to all of your efforts, and those of other activists, including most prominently the prisoners themselves with their hunger strike. While it’s too much to hope that (short of a fiscal collapse necessitating the elimination of insanely expensive military projects like Guantanamo) 2014 will be the year that this particular moral stain on my country comes to an end, we can, at least, be hopeful that a healthy dent might be put in the census and at least many if not all of the acknowledged “cleared” men get to see the light of day, and perhaps, we might even see some relaxation of the Orwellian “unable to try but too dangerous to release” doctrine.

    At a dozen years on and counting, “9-11″ is (or at least I hope it is) taking on a reduced emotional impact lo these years later; I confess that, having experienced its events firsthand, I’ve actually been able to deal with it better than most of my countrymen, who did not. Anyway, it remains my hope that this passage of time might result in a reduced political need for the collective punishment of a few nobodies based solely on their religion. Maybe as a matter of Christmas spirit if nothing else.

  9. Andy Worthington says...

    Thanks, TD. Looking forward to seeing you and the family too! Just back from six days away with the Scottish side of the family, which was lovely, and the first chance I’ve had to switch off completely since summer – when I was busy advocating the necessity of switching off our devices on a regular basis for the sake of our sanity.
    Anyway, thanks for the thoughts on the madness that engulfed the US after 9/11 – presumably fulfilling al-Qaeda’s aims – and I hope indeed that we are over the worst of the last few years, with just five releases in a three-year period. I was particularly taken by your comment about dealing with the trauma of 9/11, having experienced it first-hand, as I know you did, while others cling to it as – in some cases, it seems to me – a way of life.

  10. The Guantanamo Experiment & A Collective Test of Human(e) Traits | THE YIN FACTOR says...

    […] on the release of prisoners, particularly from 2010 onwards. These restrictions were only finally eased in December, in amended legislation that was  introduced by the Senate Armed Services Committee, under the […]

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Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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