No More Than One Year

“The detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practical, and no later than 1 year from the date of this order.”

-President Barack Obama, Executive Order 13492, January 22, 2009

Seven years into his presidency, Obama has no more than one year to fulfill his promise.

President Obama’s 2009 Executive Order established the Guantanamo Bay Task Force to review 240 cases of detainees, to consolidate all files related to each case, and render an outcome: transfer, prosecution, or continued detention.

Following the Task Force, 126 prisoners were approved for transfer, 36 for prosecution, and 48 for continued detention. (The remaining 30 were a group of detainees from Yemen held on conditional detention until the state of security in Yemen improved.) The Task Force also recommended the continued review of the cases of men marked too dangerous to release but against whom there was insufficient evidence for trial. Periodic Review Boards were established in 2011 (although the first hearing was not held until 2013) to review each case and offer an alternative to continued detention: prosecution or transfer.

At the start of 2016, however, 103 detainees were still being held at Guantanamo.

And so, on Guantanamo Bay’s fourteenth anniversary, New America held a discussion, moderated by Peter Bergen, Vice President of New America and Director of New America’s International Security Program, on the future of Guantanamo Bay and the legacy President Obama will leave behind.

Andy Worthington, co-founder of Close Guantanamo, began the event by outlining the current status of prisoners at Guantanamo Bay. He said that, of the 103 men who remained behind bars at the time of the event, 44 have been cleared for release, 35 through the Guantanamo Bay Joint Task Force, and the remaining nine through the Periodic Review Boards.

To Worthington, who arrived at New America directly from a protest organized by Close Guantanamo in front of the White House, telling inmates they will be released and then not releasing them six years later constitutes “a particular cruelty.”

Days after the anniversary, the number of detainees dropped to 93, a historic low, when 10 Yemeni prisoners were transferred to Oman.

Dr. Karen Greenberg, Director of the Center on National Security at Fordham University, believes the hesitancy towards closing Guantanamo Bay began with its very foundation. According to her, Guantanamo Bay’s first 18 months established expectations that formed the basis of what the detention facility is today. These decisions, she said, “[have] haunted this country and the process for a very long time.” First, there was a belief that “preventative detention” of potential or low level militants would “take people off the battlefield” before they could become dangerous. Second, especially during the hunt for Mullah Omar and Osama Bin Laden, it was widely believed that the informational value of the detainees was high. Guantanamo Bay, Greenberg said, became an intelligence mission. Third, military commissions at Guantanamo quickly became the norm for trying detainees, instead of moving commissions to U.S. soil or through the federal court system.

The commissions have been largely ineffective, leading Greenberg to wonder, “At what point do you say these commissions don’t work? What point do you say, ‘These commissions need to be had in Virginia or D.C. or someplace where now we have the expertise and the structure to try these individuals’?”

Greenberg believes that the “transformative moment” for Guantanamo Bay was the arrival of Khalid Sheikh Mohammed (KSM) in 2006. KSM is believed to be the man who organized the 9/11 attacks. When KSM and other high value detainees arrived at Guantanamo Bay, their presence reinforced the American public’s fears about those detained. The myth grew in the minds of the public. “All of the sudden,” she recalled, “Guantanamo became a place where the worst of the worst actually were.” Here was a detainee who could not be released because he was a threat, who had a great deal of intelligence about how al-Qaeda operated, and who would be prosecuted through a military commission at Guantanamo Bay, following much public outcry over bringing him to courts in Manhattan.

But Thomas Wilner, co-founder of Close Guantanamo and a lawyer with Shearman & Sterling LLP, is deeply troubled by the “misinformation” that the public, and even members of Congress, believe about the remaining Guantanamo Bay detainees. The main myth, he believes, is that “these guys are horrible terrorists but there’s some legal technicality that prevents them from being tried in a court, so you’ve got to keep them.” To the contrary, all three panelists described the majority of inmates as “low level footsoldiers,” rather than the “superhumans” that Greenberg believes they have become in the American imagination.

For many of the men still held at Guantanamo, it is threats they leveled against detention officers, not the threat they pose to American national security, that keeps them on the list of those considered too dangerous to be released. Worthington believes these threats, often made against interrogating officers, result not from true malicious intent, but from “facing the kind of injustice they were facing.” Once released, he said, the vast majority of men just want to get back to their lives.

Additionally, Worthington argued that much of the evidence presented against inmates to justify their continued detention was retrieved, either from them or other inmates, “under circumstances not conducive to the truth being told.”

The Periodic Review Boards can review these circumstances and the inmates, with a uniformed officer as their personal representative, can make their case. The Period Review Boards have decided on 18 cases so far and made 15 eligible for release. At an 83 percent positive outcome, Worthington described this process as “successful but moving far too slowly.”

Today, excluding the 44 inmates approved for release, 59 others remain imprisoned. 10 are expected to be prosecuted. The remaining 49 are listed as too dangerous to release but cannot be prosecuted because there is not sufficient evidence against them. They wait for their cases to be heard by the Periodic Review Board.

At the current rate, it could be 2020 before all cases are reviewed. At that point, Worthington stated, “Obama is long gone. We are so far into the next presidency.”

All panelists agreed that speeding up the Periodic Review Board process is key to closing Guantanamo Bay. Wilner argued that the resources are available to speed up the process, but that the government has not shown sufficient commitment in allocating them. Worthington added that no one is overseeing the entire process to ensure that things move along.

While recognizing the challenges ahead, Worthington believes there are “more reasons to be optimistic about Guantanamo finally closing than I think at any time since obviously 2009 when Obama came in promising to close the prison.” He pointed to “significant forces” at work within the administration who want to fulfill this commitment before leaving office. The State Department, he said, is working hard to find countries that will accept detainees approved for transfer or release by the Periodic Review Board, a process that is working, however slowly.

Greenberg agreed with Worthington, saying that arguments for maintaining the facility, including the informational value of detainees, are dwindling. “I do think Guantanamo will close with this President,” she said, adding the caveat, “...but not in a way we define closure.”

Unlike Worthington and Greenberg, Wilner was not as optimistic, stating he is “not confident the Obama administration will close Guantanamo before end of its term” for political reasons. “It is easy to stir up passions against closing,” he said, using, “demagoguery and fear.” With the election cycle around the corner, he wondered how concerned the administration will be with jeopardizing the success of the likely democratic nominee, Hillary Clinton, by making sudden movements on a highly politicized issue.

While his words may not constitute a sudden movement, President Obama did indeed commit anew to closing Guantanamo Bay in his final State of the Union Address:

“Leadership means a wise application of military power, and rallying the world behind causes that are right…And that kind of leadership depends on the power of example. That is why I will keep working to shut down the prison at Guantanamo: it’s unnecessary, it’s expensive, and it only serves as a recruitment brochure for our enemies.”

It’s also, according to Wilner, Obama’s legacy. “We should all let him know,” he said, “that he will be judged more by what he does on this by history perhaps than anything else.”