President Obama and the Republican Congress Are on a Collision Course over Guantanamo

The sun rises above Camp Delta at Guantanamo Bay Naval Base, Cuba, November 2013.

Author’s note: Tracking Guantanamo detainees is a challenging process as most publically available information regarding the facility’s population can vary from source to source or does not include prisoner classification details. The data in this column reflect the author’s own research and tracking of Guantanamo detainees.

New and justified optimism greets the otherwise dismal sixth anniversary of President Barack Obama’s decision to close the Guantanamo Bay detention camp, one of his first decisions as president. While President Obama failed to meet the one-year deadline established in his 2009 executive order, fresh momentum behind the effort to close the prison has brought the achievement within reach. Congressional Republicans have other ideas, however, and now that they represent the majority in both chambers, they have proposed more roadblocks to closing Guantanamo that are seemingly designed to harm American security and waste taxpayers’ money.

President Obama remains deeply committed to closing Guantanamo despite these obstacles because the case for it continues to grow. The first commander of the prison facility at Guantanamo, retired Major General Michael R. Lehnert, recently came out strongly in favor of closing the detention center he helped create. Major Gen. Lehnert argues that we can manage the risk associated with releasing detainees who may take up the fight against the United States, but the “risks associated with keeping Guantanamo open are harder to mitigate, and the harm will be far more lasting.”

Ambassador Cliff Sloan, who stepped down in December 2014 from his post in the Department of State overseeing the effort to transfer detainees out of the prison, recently said, “Nobody should underestimate the determination of the president to close Guantánamo during his presidency.” President Obama is so committed not only because he pledged to close the detention facility but also because, in his view, Guantanamo “is something that continues to inspire jihadists and extremists around the world.”

This helps explain why the pace of transfers out of Guantanamo has dramatically increased, with more detainees leaving the prison in the past two months than in the previous three years combined. Including the five Guantanamo detainees transferred to Oman and Estonia on January 14, 2015, a total of 27 detainees have been moved out of the prison since mid-November 2014—a substantial increase compared with the total of 19 detainees transferred from 2011 to 2013. That leaves only 122 detainees at Guantanamo, of which 48 already have been cleared for transfer—a process that requires the approvalof the secretaries of Defense, State, Justice, and Homeland Security, as well as the Joint Chiefs of Staff and the director of national intelligence. These detainees are waiting to be sent home or resettled in another country.

Of the 74 detainees that have not been approved for transfer, 33 are slated for prosecution or have been prosecuted already. Current law enacted by Congress prohibits bringing any detainees into the United States for trial in federal criminal court. That leaves the Guantanamo military commissions as the only available avenue for prosecution of at least some of these detainees. Progress has been incredibly slow, however, and while 10 men in this group of 33 detainees have been charged, none are currently close to an actual trial.

The slow pace is not the only problem with the military commissions, as serious questions remain about whether the commissions are consistent with international and domestic law. In spite of these questions, however, the commission process has at least presented the hope of resolution for some detainees. And paradoxically, being convicted of war crimes in a military commission is actually the surest ticket out of Guantanamo.

Just eight detainees have been convicted since the military commissions were created in 2002, but two of those convictions were overturned on appeal. The vacating of these two verdicts did not affect the detention status of the detainees, as they already had been transferred out of Guantanamo and were living freely in their home countries. Of the remaining six convictions, three of the detainees were quickly transferred out of Guantanamo—with two living freely—to their home countries. The two that remain at Guantanamo have plea deals with prosecutors that require their testimony at other commissions, and they will be transferred home once that testimony is given. Only one detainee convicted in a military commission is not currently scheduled to be transferred out of Guantanamo, but two of the three charges he was convicted of already have been overturned on appeal, and the third remains on active appeal.

In an effort to address part of the reason these commissions are moving so slowly, a recent military order now requires the judges overseeing military commissions to relocate to Guantanamo. Up until now, judges would only schedule one week of proceedings every two months; this is a glacial pace considering that many issues must be fully litigated, as there is no existing body of law to back up the newly created commissions. In contrast, U.S. criminal courts have hundreds of years of case law to fall back on, so judges can often resolve issues quickly and with reasonable certainty. These military commissions have only prosecuted a handful of cases, and, as a result, most issues must be litigated; the presiding judges are making new law, so they are proceeding with great caution. This move certainly does not solve all of the problems, and progress still may be slow, but at least the courts will be able to convene regularly.

With fewer detainees at Guantanamo, the already sky-high costs of keeping each detainee there are reaching astronomical levels. When the year began, the average cost per detainee was around $2.7 million but that was when there were still 155 individuals being held at the detention center. Now that 33 fewer detainees occupy the prison, the cost per detainee is rising because most of the costs associated with the Guantanamo detention center are fixed and thus not linked to the size of the detainee population.

With only 122 detainees at Guantanamo, the cost per detainee is roughly $3.5 million, with the potential to rise even further as more detainees are transferred out of the prison. If each of the remaining 48 detainees cleared for transfer are moved out of Guantanamo this year and the total costs remain about the same, the cost per detainee would rise to $5.7 million. Compare that with just $79,000 per detainee in the highest security prison in the United States—the Administrative Maximum Facility in Florence, Colorado, also known as the Supermax, which already holds one former Guantanamo detainee—and the waste is so apparent that it becomes ridiculous.

Taken together, these actions create real momentum toward closing Guantanamo, the most progress we have witnessed since 2009. They do not magically solve all of the problems associated with the task of closing the facility, but there is reason for genuine optimism.

One of the problems, of course, is the Republican-controlled Congress, which is extremely hostile to President Obama in general and to closing Guantanamo in particular. Just a week into the legislative session, Sen. Kelly Ayotte (R-NH) introduced legislation that would essentially halt all transfers from Guantanamo for two years, even of detainees who already have been approved for transfer and who the U.S. military no longer wants to hold.

Importantly, among the bill’s co-sponsors was Sen. John McCain (R-AZ) who—when he ran for president in 2008—favored closing Guantanamo and transferring all of the detainees to the United States; he was thought to be a potential ally for President Obama in the Republican caucus.

Sen. Lindsay Graham (R-SC), another of the bill’s co-sponsors, tried to push back on the arguments against the excessive cost by claiming that “whatever money we spend to keep a terrorist off the battlefield is money well spent.” But that is not the issue, and Sen. Graham knows it. The absurd waste of Guantanamo is not the byproduct of a choice between keeping the detainees the United States wants to retain in custody or letting them go—it is the choice between continued detainment at Guantanamo or options for detention in the most secure prisons in the United States at one-seventieth of the cost.

President Obama has been building momentum behind his effort to close Guantanamo. The new Congress is trying to erect new obstacles in his path. If the president wants to close Guantanamo during his final years in office, a confrontation with Congress is inevitable—and it is a confrontation he must be prepared to win.

Ken Gude is a Senior Fellow with the National Security team at the Center for American Progress.