Commentary: 4 steps the President can take to close Guantanamo

SOURCE: JTF Guantanamo

Two days after President Barack Obama took office in January 2009, he issued executive order 13492 to “close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice” within a year. At the time, there were 240 detainees held in Guantanamo. 

Today, 155 detainees remain in Guantanamo, and about half of them – 76 men – were cleared for release to their home country because they could not be prosecuted and they no longer pose a threat to U.S. national security.

Read more: Commentary: Obama shouldn’t squander opportunity to transfer all 76 cleared detainees out of Guantanamo in 2014

Although efforts to transfer the cleared detainees were stymied by Congress between 2010 and 2013, recent policy changes have created a window of opportunity for President Obama to close Guantanamo.

Here are 4 steps the President can take:

Step 1: Transfer the 21 non-Yemeni detainees cleared for release now that Congress has eased some of the restrictions on detainee transfers to other countries in the National Defense Authorization Act of 2014.

Those detainees who cannot be transferred to their home country (because of the high risk they face of being tortured) should be resettled in a third country.

Step 2: Transfer the 56 cleared Yemeni detainees now that President Obama has lifted his ban on detainee transfers to Yemen.

(The ban was imposed after Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, tried to blow up a Detroit-bound flight using an underwear bomb in December 2009.)

26 Yemeni detainees who were cleared for immediate transfer before the President’s ban took effect should be returned to Yemen as soon as possible.

The U.S. should also help Yemen build an “extremist rehabilitation program”, which would facilitate the return of the 30 Yemeni detainees cleared for “conditional transfer” pending improvements in Yemen’s security situation.

Step 3: Expedite the Periodic Review Board hearings for the 45 detainees designated for indefinite detention.

The men are being held indefinitely without charge or trial because although they cannot be prosecuted for any crime, they cannot be released because they were deemed to pose a national security threat.

In 2011, President Obama issued executive order 13567 requiring the Periodic Review Board to assess whether the men’s continued detention is warranted under the laws of war. After the initial reviews are completed, the PRB is supposed to review the detainees’ status at least once every four years.

It has taken nearly 3 years since the executive order was issued for the PRB to complete its first review on Jan. 9th. The first detainee reviewed by the PRB, Mahmud Abd Al Aziz Al Mujahid from Yemen, has been recommended for transfer out of Guantanamo.

But only 3 other detainees – Abdel Malik Ahmed Abdel Wahab Al Rahabi (Yemen), Ali Ahmad al-Rahizi (Yemen), Ghaleb Nassar Al Bihani (Yemen) – are currently on the PRB’s docket. At this rate, it would take at least a decade for the PRB to complete its review of the 45 detainees.

There is also the question of whether the laws of war, under which these detainees are being held, could apply after the withdrawal of U.S. combat troops from Afghanistan at the end of this year. The President will have a difficult time justifying the continued detention of these men under the laws of war when the war is over.

Step 4: Lobby Congress to approve the transfer of Guantanamo detainees to the United States to stand trial or to serve their time in federal prisons.

The provision to allow Guantanamo detainees to enter the U.S. was dropped as part of a compromise to guarantee the 2014 NDAA’s passage through the Republican-dominated House. However, lawmakers should consider approving the provision in the 2015 NDAA to allow the President to finally close Guantanamo.

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