President Barack Obama signed the intelligence authorization bill—the National Defense Authorization Act (NDAA). Included in the bill were restrictions that would make it harder for his administration to transfer detainees from Guantanamo Bay prison and the Bagram prison in Afghanistan.
Anthony Romero, executive director of the American Civil Liberties Union, reacted saying Obama had “jeopardized his ability to close Guantanamo during his presidency.”
“Scores of men who have already been held for nearly 11 years without being charged with a crime–including more than 80 who have been cleared for transfer–may very well be imprisoned unfairly for yet another year,” Romero added. “The president should use whatever discretion he has in the law to order many of the detainees transferred home, and finally step up next year to close Guantanamo and bring a definite end to indefinite detention.”
“The administration blames Congress for making it harder to close Guantanamo, yet for a second year President Obama has signed damaging congressional restrictions into law,” said Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch. “The burden is on Obama to show he is serious about closing the prison.”
The Center for Constitutional Rights (CCR) stated:
For the second year in a row, President Obama has caved on his threat to veto this dangerous legislation, which severely restricts his ability to transfer or provide fair trials for the 166 men who remain imprisoned at Guantanamo. The 2013 NDAA extends restrictions that have been in place for nearly two years, during which zero prisoners have been certified for transfer oversees and zero have been transferred to the U.S. for prosecution. Once again, Obama has failed to lead on Guantanamo and surrendered closure issues to his political opponents in Congress. In one fell swoop, he has belied his recent lip-service about a continued commitment to closing Guantanamo.
Similar to the previous NDAA, where he issued a signing statement expressing his administration’s thoughts on how his administration would or would not use military indefinite detention powers in the bill, Obama issued a statement asserting that multiple sections of the legislation may violate “constitutional separation of powers principles.”
One section bars the administration from using “appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose.” He indicated his administration opposed this because it “substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees.”
…For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation, and in certain cases may be the only legally available process for trying detainees…
With regards to a section that restricts the administration’s ability to transfer detainees to a foreign country, he stated Congress designed the sections renewed them once more to “foreclose” his ability to “shut down the Guantanamo Bay detention facility.” He added, “Operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies.”
Congress also limited the military’s authority to “transfer third country nationals” currently detained at Bagram. Obama stated, “Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by members of Congress.” This section, he argued, could restrict his ability to make “time-sensitive determinations” about whether a detainee needs to be held or released.
While it restricted the power of the Executive Branch to make decisions with regards to detainees, it included no provision that would have removed the power of the military to indefinitely detain individuals, including US citizens, who are suspected of providing “substantial support” for terrorism.
In this instance, the legislation passed with the intention of keeping detainees, many whom are being held indefinitely without charge, imprisoned. There are at least 166 men in Guantanamo who deserve to be tried in federal court or released, but Republicans and Democrats in Congress maintain the administration should keep them in detention, not transfer them to any facilities in the United States and put them through a military commissions system that is making up law and procedures as it goes along and is a second-class legal system for trying detainees. Moreover, it could be decades before all the men are released if they all have to go through the military commissions system; it only seems capable of handling, at most, the cases of four or five men a year.
Eighty-six men are cleared for release. The names of fifty-five of those detainees are publicly known, as they were disclosed by the Justice Department in September 2012.
There were multiple actions the Obama administration could have taken to close Guantanamo that now become unlikely because Obama signed the NDAA. However, he signed a bill that—as human rights groups have pointed out—forces the continued imprisonment of individuals who the government has determined do not deserve to remain imprisoned. This should be seen as an act that clearly undermines the rule of law.
Not wanting to use up political capital to free these men and close the ongoing abomination that is the Guantanamo Bay prison, Obama chose to bow to the politics of fear driving the restrictions in the NDAA.
The president again chose the path of least resistance. He opted to move forward and not look back and because of that innocent men, most imprisoned by his predecessor, will continue to languish in jail indefinitely.
Without challenging opposition in Congress meaningfully, his promise to close Guantanamo while he is president is not likely to be fulfilled.