Detention & Guantanamo

A Big Guantanamo Transfer: Progress Towards the Site's Obsolescence

By Benjamin Wittes
Tuesday, August 16, 2016, 11:59 AM

The Pentagon announced yesterday the transfer of 15 Guantanamo detainees to the United Arab Emirates. Here's the text of the announcement:

The Department of Defense announced today the transfer of 15 detainees: Abd al-Muhsin Abd al-Rab Salih al-Busi, Abd al-Rahman Sulayman, Mohammed Nasir Yahi Khussrof Kazaz, Abdul Muhammad Ahmad Nassar al-Muhajari, Muhammad Ahmad Said al-Adahi, Abdel Qadir al-Mudafari, Mahmud Abd Al Aziz al-Mujahid, Saeed Ahmed Mohammed Abdullah Sarem Jarabh, Mohammed Kamin, Zahar Omar Hamis bin Hamdoun, Hamid al-Razak (aka Haji Hamidullah), Majid Mahmud Abdu Ahmed, Ayub Murshid Ali Salih, Obaidullah, and Bashir Nasir Ali al-Marwalah from the detention facility at Guantanamo Bay to the Government of the United Arab Emirates. 

As directed by the president's Jan. 22, 2009, executive order, the interagency Guantanamo Review Task Force conducted a comprehensive review of these cases. As a result of those reviews, which examined a number of factors, including security issues, 6 of the 15: al-Busi, Sulayman, Kazaz, al-Muhajari, al-Adahi, and al-Mudafari were unanimously approved for transfer by the six departments and agencies comprising the task force.

Periodic Review Boards consisting of representatives from the Departments of Defense, Homeland Security, Justice, and State; the Joint Chiefs of Staff, and the Office of the Director of National Intelligence determined continued law of war detention of 9 of the 15: al-Mujahid, Jarabh, Kamin, bin Hamdoun, al-Razak (aka Haji Hamidullah), Ahmed, Salih, Obaidullah, and al-Marwalah does not remain necessary to protect against a continuing significant threat to the security of the United States. As a result of those reviews, which examined a number of factors, including security issues, al-Mujahid, Jarabh, Kamin, bin Hamdoun, al-Razak (aka Haji Hamidullah), Ahmed, Salih, Obaidullah, and al-Marwalah were recommended for transfer by consensus of the six departments and agencies comprising the Periodic Review Board. The Periodic Review Board process was established by the president's March 7, 2011 Executive Order 13567. 

Name     Date of Periodic Review Board final determination
Mahmud Abd Al Aziz al-Mujahid    Jan. 7, 2014
Saeed Ahmed Mohammed Abdullah Sarem Jarabh Mar. 5, 2015
Mohammed Kamin   Sept. 28, 2015
Zahar Omar Hamis bin Hamdoun     Jan. 12, 2016
Hamid al-Razak (aka Haji Hamidullah)     Feb. 11, 2016
Majid Mahmud Abdu Ahmed  Feb. 18, 2016
Ayub Murshid Ali Salih   Mar. 23, 2016
Obaidullah       May 19, 2016
Bashir Nasir Ali al-Marwalah     May 31, 2016

In accordance with statutory requirements, the secretary of defense informed Congress of the United States' intent to transfer these individuals and of the secretary's determination that these transfers meet the statutory standard.

The United States is grateful to the Government of the United Arab Emirates for its humanitarian gesture and willingness to support ongoing U.S. efforts to close the Guantanamo Bay detention facility. The United States coordinated with the Government of the United Arab Emirates to ensure these transfers took place consistent with appropriate security and humane treatment measures.

Today, 61 detainees remain at Guantanamo Bay.

A few quick points: 

First, this is a significant accomplishment, in my opinion. Getting detainees out of Guantanamo is very hard. There is both an intensive internal review process and, for those detainees who clear that process, there's the additional hurdle—sometimes a very time-consuming hurdle—of finding a country that will take the detainee subject to the security and humane assurances that the review process and other U.S. legal and policy constraints demand. The result are two backlogs: the backlog of detainees who cannot be cleared for transfer, and the backlog of detainees who are cleared but cannot be removed. This one action clears 43 percent of the second backlog. Before it, there were 35 detainees at Guantanamo cleared for transfer; now there are only 20.

Second, with this transfer, Obama is getting rather close to the point at which keeping Guantanamo open looks just plain silly. I've never much cared whether Guantanamo closes or not. I dislike the symbolic politics of the "Close Guantanamo" movement about as much as I dislike the chest-thumping symbolic politics of the Guantanamo-is-toughness crowd. If Obama manages to remove a substantial fraction of the remaining 20 people cleared for transfer and Hillary Clinton maintains his policy of not bringing new detainees to the site (Donald Trump promises to revitalize detention there, so if he wins the presidency, the point is moot), the notion of maintaining an entire detention facility for the long-term detention of as few as 40 or so detainees will become increasingly hard to sustain. Guantanamo is not Spandau Prison, and it doesn't make much sense to maintain it for the sake of maintaining it. 

Third, this point returns me to the argument Steve Vladeck and I made at the beginning of the year in the Washington Post about a possible compromise on Guantanamo:

The compromise we envision has five relatively straightforward components:

  • First, it would authorize the executive branch to transfer all remaining detainees to a specific civilian or military federal prison facility within the United States, with a ban on release from that facility except (1) pursuant to a judicial order or (2) for the purpose of transferring them to the custody of a U.S. court or a foreign sovereign.
  • Second, it would provide that any person convicted by a military commission would serve his sentence at the same facility.
  • Third, regardless of where the facility were located, the bill would provide that the U.S. District Court for the District of Columbia would continue to exercise jurisdiction over all civil actions, including habeas petitions, filed by detainees transferred to that facility from Guantanamo.
  • Fourth, the bill would provide that it had no effect whatsoever on substantive law, including the legal authority to subject terrorism suspects to military detention under other statutes, such as the September 2001 Authorization for the Use of Military Force and the fiscal 2012 National Defense Authorization Act.
  • Fifth, it would declare that this same facility would be the permanent site for any future detentions under those statutes.

I continue to think this proposal provides a responsible way forward, one that would allow Guantanamo to close but would also allow Republicans to permit that closure knowing that they had established an alternative site for whatever future long-term detentions the United States may engage in. Time has basically run out in the Obama administration, which is going to end with Guantanamo still open. But the Guantanamo that will remain open will be an almost depopulated shell of a facility to which the administration refuses to bring new detainees, one that has reached the point where keeping it around is purely a matter of misguided symbolism. It would be far more useful for Guantanamo's enthusiasts to replace it with a detention facility which an administration might actually choose to use.