Congress Must Adopt Changes to the Guantanamo Provisions of the 2016 National Defense Authorization Act

The sun rises above Camp Delta at Guantanamo Bay Naval Base, Cuba, on November 20, 2013.

The budget deal between Congress and the Obama administration throws new light on President Barack Obama’s veto of the 2016 National Defense Authorization Act, or NDAA. The president used his veto pen for the first time on this defense bill, in part because of a disagreement with Congress over the use of Overseas Contingency Operations, or OCO, funding. Congress used the OCO as a way to breach the mandatory spending caps for the U.S. Department of Defense without taking comparable action on nondefense spending. But with those past differences presumably resolved in the present budget deal, all the attention shifts to the other reason that President Obama vetoed the NDAA: the prison at Guantanamo Bay.

Despite the president’s pledge on his first full day in office to close Guantanamo in one year, 112 detainees remain in the prison with just 15 months left in President Obama’s term. The prison remains a dangerous recruiting tool for enemies of the United States—on top of being an entirely unnecessary waste of scarce resources. While the Obama administration’s early mistakes are partly responsible for the prison’s continuing operation, Congress has been the primary road block to closing Guantanamo. Legislators have often imposed transfer restrictions, which prevent any detainees from coming to the United States and making it very difficult to send detainees to foreign countries. Previous versions of the restrictions were so extreme that virtually no detainees were transferred out of Guantanamo from early 2011 through late 2013. Congress relaxed those restrictions in 2014, clearing the way for the transfer of more than 30 detainees.

When he vetoed the NDAA, President Obama said, “in addition to failing to remove unwarranted restrictions on the transfer of detainees, this bill seeks to impose more onerous ones.” The 2016 NDAA would keep the ban on transferring any detainees into the United States for any reason and impose new restrictions on foreign transfers. President Obama has repeatedly threatened to veto the NDAA in response to Guantanamo transfer restrictions in the past, but this is the first time he has followed through. The House could move as early as this week on a new NDAA bill that reportedly includes no changes to the Guantanamo provisions. This would be a mistake.

No matter what happens with the restrictions during further negotiations on the NDAA, it will still be possible to close Guantanamo during the Obama administration. But these transfer restrictions make that task extremely difficult and advocates are right to push as hard as possible to get Congress to lift all of them. It is important, however, that there is a Plan B in light of the overwhelming Republican opposition to closing the prison. The following recommendations highlight what is possible to achieve in this Congress and what would preserve the option to close Guantanamo by January 2017.

Congress should include an exception in the U.S. transfer ban in order to allow for the trial and incarceration of Guantanamo detainees in the United States. There is ample precedent for doing so. The Bush administration, for example, was the first to bring a Guantanamo detainee to the United States when it transferred Yassir Esam Hamdi first to the naval brig in Norfolk, Virginia and then to the brig at the Joint Base Charleston in South Carolina in 2003. As the Republican candidate for president in 2008, the now-Chairman of the U.S. Senate Armed Services Committee Sen. John McCain (R-AZ) had a plan to bring all 240 detainees who were then at Guantanamo to Ft. Leavenworth in Kansas. And before the transfer ban was imposed, the Obama administration moved Ahmed Ghailani to New York for trial in 2009. Ghailani was convicted and sentenced to life in prison for his role in the 1998 U.S. Embassy bombings in East Africa; he is now incarcerated at the Supermax federal prison in Florence, Colorado.

The prohibition on bringing Guantanamo detainees to the United States for trial makes no sense, especially considering that high-profile terrorist suspects have been captured overseas and brought to the United States for trial with relative frequency and absolutely no political controversy. Two recent examples include Osama bin Laden’s son-in-law and the alleged ringleader of the Benghazi attack. The lack of attention paid to these two criminal prosecutions on U.S. soil demonstrates that the opposition to holding similar trials for Guantanamo detainees is an entirely manufactured political crisis with no basis in the underlying facts.

Congress should remove the arbitrary, country-specific prohibitions and return to the status quo on foreign transfers requirements. The current version of the 2016 NDAA also adds unnecessary layers and complicates transfers to foreign countries. It includes an arbitrary and absolute prohibition on transfers to four countries: Yemen, Syria, Libya, and Somalia. The violence and instability that is plaguing these countries do make them unlikely destinations for Guantanamo transfers. It is inappropriate for Congress to interfere in this manner with the discretion of our military commanders in order to determine how and when to release individuals held in the custody of the military pursuant to the laws of war. It is also not necessary to place additional requirements on the already robust process that the Obama administration has implemented on foreign transfers—which requires the assent of the Secretaries of Defense, State, and Homeland Security, the Attorney General, the Chair of the Joint Chiefs of Staff, and the Director of National Intelligence.

Congress should restore the medical transfer provision from the Senate version of the 2016 NDAA. This same version included another rational exception to the U.S. transfer ban, a provision that would allow Guantanamo detainees to be temporarily moved into the United States in order to receive necessary medical attention. The United States has an ethical and legal responsibility to provide appropriate medical care to the Guantanamo detainees. The base’s isolated location and limited medical facilities, however, make providing appropriate care to an aging detainee population both extremely cumbersome and expensive. When the Guantanamo medical facility treats detainees during regular hours, it must close to U.S. personnel for security reasons. Furthermore, the facility lacks some of the equipment and qualified staff to properly treat the detainees—resources that must be flown in from the United States at high cost. Allowing temporary transfers to military medical facilities in the United States would improve the quality of care for U.S. personnel and the Guantanamo detainees, and do so at a lower cost.

The fight over closing Guantanamo has been one of the most intense political battles of the Obama administration. President Obama wants to close Guantanamo because it is an unnecessary and costly national security vulnerability for the United States. Congress has turned this national security issue into a naked political fight. President Obama has now drawn a line in the sand and backed it up with a veto. Allowing Guantanamo detainees into the United States for trial; scrapping arbitrary, country-specific transfer bans; and allowing temporary transfers to the United States for medical treatment represent a reasonable way out of this standoff.

With these changes, the Obama administration could dramatically reduce the detainee population at Guantanamo from its current number of 112 detainees to closer to 30 detainees over the course of the next year. Such a small detainee population would shift the calculations about what to do next. It would become even more difficult to justify keeping the prison open at a cost of nearly $500 million a year for a relative handful of detainees. Congress may relent on allowing a small number of law of war detainees into the United States, or other options may emerge to finally close the prison. The bottom line is that these solutions preserve both the viability of closing Guantanamo and congressional prerogatives. It is time that reason prevailed.

Ken Gude is a Senior Fellow with the National Security Team at American Progress.