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What Has to Happen to Close Guantanamo Bay This Year

Guantanamo fence

SOURCE: AP/Brennan Linsley

Razor fences surround a guard stand at Guantanamo Bay, Cuba.

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President Barack Obama surprised many by calling for the prison at Guantanamo Bay, Cuba, to be closed this year in his State of the Union address. While a renewed emphasis on closing Guantanamo came from the White House a year ago, growing awareness of its absurd operating cost and Americans’ shifting attitudes have created new momentum behind the effort, which had stalled in the face of congressional opposition. Much work remains to be done, however, to achieve this new ambitious goal, not least of which is overcoming restrictions imposed by Congress that put limits on moving detainees into the United States.

It is important to remember that the theme of this State of the Union was executive action; the president has the authority to dramatically reduce the Guantanamo population without congressional approval. While there are specific challenges to overcome in order to close the prison, it is clear that a great deal of progress can be made with just a few steps. In turn, the task of closing Guantanamo then becomes much more manageable.

With this new call for the prison’s closure, the president delivered a shot in the arm to those both in Congress and outside government who have been working tirelessly for more than a decade to close Guantanamo. It can happen, and here’s how.

Current Guantanamo detainee population

There are currently 155 detainees at Guantanamo. The Obama administration’s Detainee Review Task Force evaluated the Guantanamo population from 2009 through 2010 and sorted them into three categories: detainees who can be transferred out of U.S. custody either to their native country or to other countries; detainees who are designated for prosecution either in federal criminal court or by military commissions; and detainees who will remain in U.S. custody but do not face prosecution in either forum. Of the population that remains at Guantanamo, 77 are slated for transfer, 33 for prosecution, and 45 for continued detention.

The Guantanamo Yemenis

Of the current Guantanamo population, a majority—88—are Yemenis, by far the largest remaining national group. Of those 88, 55 have been designated for transfer—a group that on its own comprises more than one-third of the total Guantanamo population. So many Yemeni detainees are still there because legitimate concerns about security and prison conditions in Yemen made transferring custody difficult if not impossible for years, to say nothing of the multiple ongoing conflicts that are plaguing that nation. A new government in Yemen, however, has shown itself to be a more constructive partner with the United States, and President Obama has consequently lifted the moratorium on transferring Guantanamo detainees back to Yemen.

In addition, the U.N. Interregional Crime and Justice Research Institute is leading an international effort to establish an extremist rehabilitation program in Yemen, designed primarily to address militancy and radicalization in the domestic Yemeni context. The United States is assisting in that effort, and this rehabilitation center could be used to facilitate the repatriation of this group of Yemeni detainees. A solution has now appeared on the horizon for the 55 Yemenis that are designated for transfer.

Transferring just this one group would bring the total Guantanamo population down to 100 and the transfer category down to 22.

The end of the war in Afghanistan

In his State of the Union address, President Obama linked closing Guantanamo to the end of the war in Afghanistan in a way that foreshadows more action. There are 17 remaining Afghan detainees at Guantanamo: 3 have been slated for prosecution, 4 have been designated for transfer, and 10 are held in continued military detention. Former Defense Department General Counsel and now Homeland Security Secretary Jeh Johnson said last year that “in general, the military’s authority to detain ends with the cessation of active hostilities.”

The Obama administration appears to be following Secretary Johnson’s premise; for more than a year, the United States has been negotiating the potential release of five top Taliban officials held at Guantanamo. Those five detainees are all in the continued-detention category. Eleven of the remaining 12 are relatively low-level figures who certainly pose no greater risk than the 5 high-ranking Taliban detainees already under consideration for release. Three have been slated for prosecution, though no progress has been made on any of their cases; four for transfer; and four remain in the continued-detention category. The only exception is Muhammad Rahim al Afghani, a high-value Al Qaeda detainee who was a close associate of Osama bin Laden and holds the distinction of being the last person transferred to Guantanamo in 2008.

Regardless of the outcome of the tense negotiations with Afghan President Hamid Karzai over the security agreement that would define U.S. troop presence beyond 2014, major U.S. combat operations in Afghanistan will end this year. The Obama administration appears ready to use that opportunity to help reduce the Guantanamo population by repatriating at least 16 of the 17 remaining Afghans.

Assuming the previously mentioned transfer of Yemenis, a running tally brings the total population down to 84, with 30 slated for prosecution, 18 for transfer, and 36 held in continued detention.

Current pace of transfers is sufficient to meet end-of-year goal

If the Yemenis and Afghans slated for transfer are successfully repatriated, it would leave only 18 in the group of detainees designated for transfer out of U.S. custody. Just six months ago, moving even that limited number by the end of the year would have seemed impossible. However, the president appointed a new State Department special envoy, Cliff Sloan, to facilitate such transfers, and the results have been impressive. Just since November 2013, nine former Guantanamo detainees from the group designated for transfer have been repatriated or sent to third countries. And those transfers occurred before Congress lifted the restrictions that previously made the process of transferring Guantanamo detainees to their native or third countries extremely difficult. With nine detainees transferred in three months and now lower barriers to this effort, getting those 18 who remain at Guantanamo transferred out of U.S. custody is entirely possible in the 11 months remaining in 2014.

Continuing the tally, that would bring the total population down to 66, with 30 slated for prosecution and 36 in continued detention.

Additional options to reduce detainees remaining in U.S. custody

Should the rehabilitation center demonstrate success in providing a secure facility for repatriated Yemenis to transition away from militancy, it opens the additional opportunity to transfer the 27 Yemenis designated for continued military detention at Guantanamo. A recent decision by a panel that the Obama administration established to review the cases of Guantanamo detainees for potential changes in their status moved in this direction when it recommended that one Yemeni detainee originally placed in the continued-detention category should now be eligible for transfer. This was the first such status review by the panel and additional recommendations could be forthcoming.

This would be a major breakthrough in the goal to close Guantanamo this year as it could bring the number of detainees at Guantanamo slated to remain in U.S. custody down to just 39. It would be ludicrous to continue to operate the extremely expensive facility at Guantanamo with a detainee population that small. And finding a permanent solution in the United States is vastly simpler when looking to hold three dozen detainees rather than 300.

Accelerate the military commissions cases now ongoing at Guantanamo

Six detainees are currently facing charges in Guantanamo military commissions. Five are charged with responsibility for the 9/11 terrorist attacks, including the plot’s mastermind, Khalid Shaikh Mohammed, known informally as KSM. The sixth is accused of planning the 2000 attack on the USS Cole in Yemen. All have faced these charges for years in an agonizingly slow, flawed, and ridiculously expensive experiment in military justice. We are long past the point in which it became obvious that a federal criminal trial for all of these detainees would have been a far better choice. But short-sighted political pressure—and what at the time seemed like a very high cost, though we now know it is far cheaper than the current plan—forced the Obama administration to abandon its attempt to prosecute these detainees in New York.

A new urgency is necessary to bring these cases, or at least the 9/11 case, to a resolution before the end of the year. That is 11 months from now. It should be possible. The military commission trial for these five co-defendants began in May 2012. It is entirely appropriate for trials of this magnitude to take years, but this case has proceeded excruciatingly slowly with hearings delayed by events as unconnected to the case as train derailments in Baltimore and storms in the Caribbean. This needs to be a priority, and it does not seem unreasonable to expect that this case can be completed in 32 months.

A successful prosecution in the 9/11 case would be a catalyst for additional actions necessary to close Guantanamo. KSM is perhaps the only Guantanamo detainee familiar to the average American. Without KSM in detention, it would be extremely difficult to whip up much domestic political heat over other, no-name Guantanamo detainees. It is far more likely that the reaction of the American people to the prospect of holding obscure Guantanamo detainees in the United States would be similar to their reaction to the actual U.S. incarceration of former Guantanamo detainee Ahmed Ghailani since 2009—a shrug.

Obtaining a conviction of KSM and his co-conspirators for their roles in the 9/11 attacks could bring some closure to that sad and tragic chapter in American history and help us turn the page and finally shut down the prison at Guantanamo.

Designate a military base in the United States to hold military commissions

One of the key elements of President Obama’s renewed push to close Guantanamo, announced in his May 2013 speech at the National Defense University, was the order to the Department of Defense to designate a military base in the United States to hold military commissions. This was a shrewd move, for it is difficult to argue that a military base inside our borders is somehow not secure enough for the trial of Guantanamo detainees. If it were not secure enough to protect against potential attack, it would be a genuine emergency regardless of the presence of a handful of Guantanamo detainees. Eight months have passed, and no base has yet been identified by the Pentagon. It is long past time.

Push Congress to lift the ban on transfers into the United States for prosecution

Congress has prohibited the transfer of any Guantanamo detainee into the United States for any reason; thus the failure to designate a U.S. military base to hold military commissions may seem to be a moot point. But it is not.

The Obama administration cannot wait for Congress to get around to reconsidering the transfer ban when it takes up the 2015 defense authorization bill, the usual mechanism for Congress to consider the transfer restrictions. It must spur congressional action, and a recommendation from the Defense Department that a military base inside the United States is a suitable alternative to Guantanamo to hold military commissions would do just that. Once the ban is lifted, detainees can be brought to the United States to stand trial in federal criminal court or military commissions and, if found guilty, be incarcerated in either the highest security federal penitentiary, which already holds international terrorists, or in a military prison. That solution is much more feasible when the total number of detainees involved is less than 40, instead of more than 150.

Capitalize on the momentum to close Guantanamo

All of the steps outlined above can be accomplished using the president’s existing authority and are consistent with the executive-action theme of President Obama’s State of the Union address. Challenging issues regarding the future status of some of the detainees would remain. But if the administration can demonstrate meaningful progress in these areas and show a legitimate path toward a dramatically smaller detainee population, it will add significant fresh energy to the momentum of the past six months.

More detainees have left Guantanamo in the past three months than in the past three years. President Obama is clearly committed to closing the prison. High-level officials have been appointed at the State and Defense Departments to focus solely on that goal. The White House is very engaged with its allies in Congress in the legislative battles surrounding Guantanamo. And finally, Congress voted in December to make it easier to close Guantanamo when it lifted the restrictions on transferring detainees overseas.

The time to close Guantanamo is now. It is incredibly expensive. It is wasteful in a time of major budget cuts. Osama bin Laden is dead, the war in Afghanistan is ending, and the American people are growing weary of constant war and conflict.

The only thing that seems to motivate action in Washington these days is deadlines. Getting it done by the end of 2014 is an ambitious goal, but it can be done.

Ken Gude is a Senior Fellow at the Center for American Progress.

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