Guantanamo: Legislation

This Year's NDAA: A Big Win for the Administration on Guantanamo

By Benjamin Wittes
Tuesday, December 10, 2013, 10:26 PM

I have only had a chance to look briefly at the Guantanamo-related provisions of the House-Senate compromise NDAA, but the text looks to me like a big win for the Obama administration---and for common sense.

The administration will cast this as a step forward for closing Guantanamo. I don't care a fig about whether Guantanamo stays or goes. I do care a lot, however, about holding people we don't need or want to be holding, and this bill would go a long way to restoring the administration's flexibility to transfer detainees it wishes to get rid of. That's a very good thing---whatever one thinks of Guantanamo.

The last few years have seen tight restrictions on the authority to transfer Guantanamo detainees---even those who pose little threat. These have included a flat bar on bringing detainees to the United States, and a set of requirements for transfers to other countries that involves onerous certifications by the Secretary of Defense that almost never could be signed.

The requirements of this year's bill are significantly more relaxed (see pp. 443-451). Here are the relevant provisions:

Sec. 1033 retains the current restriction on spending money to upgrade domestic facilities to handle Guantanamo detainees. Sec. 1034 retains current law's ban on spending money to transfer or release any Guantanamo detainee into the United States proper. So far, no change from the status quo. Congress remains committed to the idea that those detainees the administration wants to hang on to should remain at Guantanamo.

Sec. 1035, however, allows the Secretary of Defense to transfer a detainee overseas in one of three circumstances: If a Periodic Review Board determines that the detainee is "no longer a threat to the national security of the United States," for starters, or if the transfer is necessary to effectuate a court order. Moreover, the section also allows a transfer if the Secretary of Defense determines that "actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests; and the transfer is in the national security interest of the United States." The section then lays out a long list of factors to be considered in making this determination, but unlike under current law, this list isn't a certification requirement. It is just an enumeration of factors to be considered in making a gestalt judgment. The provision also requires 30 days notice to Congress before a transfer and fairly exhaustive bunch of reporting to Congress on the risks of and findings behind a transfer. But again, this is about creating a record of accountability, not about legally preventing the transfer from happening. Assuming this law goes into effect, the administration will be in a position to move detainees out of Guantanamo as long as it is willing to be politically accountable for the problems they create and as long as they don't bring them to the United States.

That's a big change---and a good one.