There is a new bipartisan momentum in Congress that could lead to the closing Guantanamo.
The new 2014 Senate defense budget bill, which was introduced to the floor last week, includes provisions that would allow the transfer of detainees—those already cleared for transfer by U.S. intelligence and defense agencies—back to their home countries. It also includes provisions that would allow the transfer of Guantanamo detainees to the United States for prosecution, incarceration, or medical treatment.
A vote on this bill could come as early as November 20, 2013. But these five amendments to the bill, if passed, could put a stop to that. (Side note: check out this awesome infographic on how laws are passed in the United States.)
3. The “Let’s-Stick-With-The-Status-Quo” Amendment, Part 1: The Package Deal
This is the most straightforward Guantanamo amendment which would strike the Guantanamo-related language from the current version of the bill, and replace it with the language that currently exists in law.
That means the amendment—being promoted by Senators Ayotte and Inhofe—would prohibit transfers of Guantanamo detainees to the United States for any purpose, and restore restrictions on transfers abroad that the Obama Administration has said significantly limit its ability to transfer even those detainees that have been unanimously cleared for transfer by our security and intelligence agencies.
Proponents of the amendment claim that these transfer restrictions are reasonable and necessary standards to keep Americans safe. But national security experts including 38 retired generals and admirals argue that the current transfer restrictions are unwise and unnecessary because the executive branch has thorough procedures in place to evaluate and mitigate risks associated with transfers.
4. The “Let’s-Stick-With-The-Status-Quo” Amendment, Part 2: Domestic Transfers
A variation on the comprehensive amendment described above, this amendment would impose a ban on transfers to the United States, which would leave the fight on foreign transfers for a separate amendment.
The cost of detaining and providing medical treatment for Guantanamo detainees has become exorbitantly high: $2.7 million annually per detainee, according to the Department of Defense. That’s nearly 35 times what it would cost to house detainees stateside. Moreover, federal courts have overturned two of the seven military commission convictions because the crimes they were originally convicted for were not considered war crimes at the time of the offense. That means a civilian trial in the United States may be the only way to bring some Guantanamo detainees accused of crimes to justice. In fact, federal courts have prosecuted over 500 terrorism trials since 9/11—why not try Gitmo detainees that way?
5. The “Let’s-Stick-With-The-Status-Quo” Amendment, Part 3: Foreign Transfers
This amendment would prevent transfer of detainees back to their countries.
Proponents of this amendment claim that stringent transfer restrictions are necessary to protect against transferring detainees who will “return to the fight,” even though the confirmed recidivism rate (the probability of Gitmo detainees turning against America) for transfers under the Obama Administration has been just 4.2 percent.
These claims do not account for the fact that security and intelligence officials in the executive branch are best positioned to evaluate and manage the risks associated with transfer and that 84 of the remaining 164 detainees have been unanimously cleared for transfer by U.S. defense and intelligence agencies.
But as Director of National Intelligence Clapper recently noted, Guantanamo is a potent recruitment tool for al Qaeda and that the existence of Guantanamo is already a national security risk.
6. An Amendment Banning All Transfers to Yemen
When the House of Representatives considered the national defense budget bill, it passed an amendment that would prohibit transferring any detainees to Yemen, and many expect a similar amendment to be taken up in the Senate.
Recall that President Obama had himself imposed a moratorium on transfers to Yemen after evidence emerged that an attempt to bomb an airliner on Christmas Day in 2009 was directed out of the al Qaeda affiliate in Yemen. But the president overturned the moratorium in May, noting that the situation in Yemen had evolved and that transfers would be considered on a case-by-case basis.
Senator Dianne Feinstein, who had originally supported a moratorium on transfers to Yemen, also said earlier this year that the issue of transfers to Yemen should be revisited. Human Rights First, an advocacy organization focused on pressing the United States to lead on human rights, argues that a ban on transfers to Yemen is an unnecessary restriction that will only complicate efforts to responsibly transfer cleared Guantanamo detainees, including the 56 Yemenis who have long been cleared for transfer.
7. The “Comprehensive Plan” Amendment
Some members of Congress have expressed a desire for a plan from the administration on how to close Guantanamo, and have been hesitant to support the administration’s efforts without such a plan.
The advocacy group Human Rights First has produced a comprehensive “Exit Strategy” for Guantanamo, which builds on the Administration’s 2010 Guantanamo Detainee Task Force Assessment, to show how there is already a plan for how Guantanamo can be closed responsibly.
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