What Would it Actually Take to Close Guantanamo?

By Benjamin Wittes
Monday, February 2, 2015, 10:31 PM

Obama reiterated in his State of the Union address that he is committed to closing Guantanamo: "Since I’ve been President, we’ve worked responsibly to cut the population of Gitmo in half.  Now it is time to finish the job.  And I will not relent in my determination to shut it down.  It is not who we are.  It’s time to close Gitmo."

The remarks prompted an earlier exchange between me and Steve Vladeck and Raha Wala, which I won't rehash here. Rather, in this post I want to focus on a different question: What would it actually take for President Obama to "finish the job"? That is, if the president is truly committed to getting Guantanamo closed, what will he have to do in his remaining two years in office? The answer is that it's a tough haul and he's running out of time.

Let's assume for purposes of argument that Obama is, in fact, serious about closing Gitmo. There are a few reasons to believe this. The most important is that he keeps telling people that he's serious about it. There is little political currency for him to keep raising it in high-profile venues like the State of Union, but he keeps doing so. He keeps putting his own credibility on the line over the issue. And he's going to look really silly if, in fact, his determination does, at the end of the day, relent.

The trouble is that a number of things have to happen for him actually to get Guantanamo closed, and not all of them are under his control. It will require a lot of things---not least among them luck.

Right now, there are 122 detainees at the facility, 54 of whom are cleared for transfer---assuming diplomatic arrangements can be made to resettle them. This number could grow. Periodic Review Boards so far have flipped a large percentage of detainees slated for continued detention to the transfer group. And that could continue. So there are probably north of 60 detainees who, assuming we could find somewhere to take them safely, could be removed. The first step for a president who wants to close the facility is to get as many of these transfers done as possible.

This is not easy. The Obama administration has had a fair bit of success in resettling detainees, more than I expected at the outset of the administration. But the climate is difficult now. The transfer restrictions still require serious certifications for each detainee removed. And the more scared foreign populations and leaders become of events like the ones in Paris and of groups like the Islamic State, the more difficult the climate becomes to convince countries that what's really lacking from their polities is a few Guantanamo detainees. The administration has gotten some transfers done recently---and thus has some momentum. And there are countries that want to help, generally in exchange for something. So there's opportunity here, but it's not clear how much, and it's not clear that the opportunities will persist. And for reasons I'll explain, there's also not a lot of time.

Until the administration gets the numbers of detainees at Guantanamo below 100, maybe even below 80, it has no prospect of changing the dynamic on Capitol Hill that is preventing the facilities closure. So it needs a lot more momentum, and it needs it pretty fast if a closure is going to happen.

Unfortunately for Obama, while transferring cleared detainees is hard, it's actually the easy part. The hard part is figuring out what will come next for those who remain. One way or another, there will still be a bunch of uncleared detainees at Guantanamo. And contrary to the fond wishes of the human rights community, the alternative to the continued detention of the vast majority of these people at Guantanamo is not their criminal trial or their freedom. In the real world, the alternative is continued their detention somewhere else. This fact---and I'm afraid it is a fact---has given rise to one of the odder currents of opposition to the president's Guantanamo plans, a current which comes from members of the detainee bar who do not wish to see the President recreate Guantanamo somewhere else.

Only a small number of the remaining detainees can, in fact, face criminal trial. The majority cannot. My best guess is that this group, even after the PRBs flip a few more, will include a minimum of about 50 people, and it's probably more than that. The hard part begins once the Guantanamo population is winnowed down to something close to this core group---that is, the point at which resettlement has run its course.

At this point, President Obama will simply have to make a political case to Congress that it will be better to hold these people in the United States than to continue holding them at Guantanamo.

I'll return momentarily to the substance of that political case, but let me pause first to consider the timing of it. Realistically, if Guantanamo is to be closed before the President leaves office, Congress has to lift the restriction on moving detainees to the United States this year. That's going to be a hard legislative sell. And it means that the winnowing of the population will have to take place over the next few months. If the Guantanamo population is still above 100 in June or July, forget it; there simply won't be time for the President to make a serious case to Congress that it should let him move the remaining detainees to facilities in the United States. If, on the other hand, the current momentum continues, and five or six months from now, we have between 80 and 100 detainees left at the facility, then the picture looks different.  The President would then need to spend the remainder of the year convincing Congress---probably in this year's NDAA---to relax the restrictions on bringing detainees to the United States, and if he succeeded in doing so, he would then have his remaining year in office actually to effectuate that judgment.

What does the political case for closure look like? To put it bluntly, it doesn't look much like what the President said in the State of the Union. And it looks different in the House of Representatives than it does in the Senate. In the Senate, it's a vote-by-vote whipping operation. The key figure is probably John McCain, who has favored closing Guantanamo but is also mercurial and wants a plan for the disposition of detainees. He needs to get one, in considerable detail. And Obama may need to present different cases to different senators. The core of the case, it seems to me, is that Guantanamo is tainted, causes friction with allies, and that it can never serve as the sort of long-term detention facility the United States could be proud of. The situation is unsustainable, particularly as the population dwindles. Are we really going to keep the entire facility operating for a small ans shrinking number? Build a facility in the United States, by contrast, and you'll reduce tensions over detention, both domestically and internationally. Is it a winning case? I don't know.

On the House side, the environment is different. Votes are less individualized. Guantanamo will be a chit in a the giant horse trades of power politics. If the president really wants a Guantanamo closure, he will have to give something---and probably something big---to the Republican leadership in exchange. This situation will arise only if Obama succeeds on the Senate side, but if the issue ever reaches the House side, it is not going to be a merits arguments there. It's going to be a negotiation. If it ever comes to this, we'll learn what closing Guantanamo is really worth to Barack Obama. And we'll also learn what it's really worth to his political base, who will have to give up something else---maybe something unrelated---that they care about to see it happen.

To put it simply, actually getting Guantanamo closed is---at this point---an extremely heavy lift. There's still a path to getting it done, but the window is closing, and it's going to take both luck and energetic presidential leadership if it's going to happen.

We will, I think, know very soon whether Obama's Guantanamo talk is more than just talk.