Why Obama hasn't closed Guantanamo Bay

In 2009, in one of his first acts as U.S. president, Barack Obama signed an executive order calling for the prison at Guantanamo Bay to be closed within the year. He was fulfilling a campaign promise and riding a wave of bipartisan support. It was to be a signal that the post-Bush era had begun. 

But within months, the promise unravelled. The Democrat-controlled Congress passed restrictions on transfers out of Guantanamo. The message: detainees aren’t welcome on U.S. soil. By his second term, the restrictions included bans on transfers to countries like Libya, Yemen, Syria and Somalia. 

The failure to close Guantanamo, critics say, was due to a Congress putting up legal roadblocks on one hand and a president who didn’t act forcefully enough on the other.

“There’s plenty of blame to go around, but ultimately this is the president’s legacy and his policy at stake,” said Raha Wala of the advocacy group Human Rights First.

There are now 61 detainees remaining at Guantanamo, after 15 were released over the weekend. Some had been held without charge for more than 14 years. Currently, 31 are being held on indefinite detention, without charge or trial.

Wala says for Guantanamo to close within Obama’s term, some detainees will have to come to U.S. soil either for prosecution or until a solution to their situation can found. He says the Obama administration needs to make the case to the American people that bringing them stateside isn’t a threat to national security. He points to the hundreds of individuals already convicted of terrorism and being in the U.S. 

“None have escaped [and] there have been no attacks on districts in which terrorism suspects are currently held,” Wala said.

An unwillingness to fight Congress

Columbia Law School professor Matthew Waxman agrees that bringing detainees to the U.S. is the only viable way to close the facility. He says the biggest obstacle has been the president’s unwillingness to fight Congress.

The U.S. flag flies inside of Camp 6 at the U.S. Naval Base at Guantanamo Bay, Cuba on March 22, 2016. The Obama administration recently approved the release of 15 inmates to the UAE. (Lucas Jackson/Reuters)

“Any president has to decide where he wants to spend his political capital, and he seems to have realized that this policy isn’t as cheap as he expected, and that the benefits would be less than he expected,” said Waxman, also a fellow at the nonpartisan think-tank Council on Foreign Relations. 

Donald Trump has said he’ll keep the detention camp open, while Hillary Clinton has supported Obama’s plans — though Waxman questions her resolve to see it through if elected.

Closure means spending ‘political capital’

“I wonder whether she would be willing to spend political capital of her own to get this done,” Waxman said. “I don’t think Guantanamo will close in the foreseeable future.” 

Elizabeth Beavers with Amnesty International is more optimistic.

“This transfer that just happened was huge. If they can keep taking these bold steps forward, they have the time to do it,” Beavers said.

While the president could invoke an executive action to bring detainees to the U.S., Waxman sees that as legally dubious. Wala says getting the number of detainees down as low as possible would help the president make his case.

“The lower the number of the final detainees at Guantanamo the easier it is to imagine a situation in which the president can move forward even without a wholesale reversal of Congress,” Wala said.

End indefinite detention

Time is running out, but even if Obama does close the prison at Guantanamo Bay, lawyers like Pardiss Kebriaei of the Center for Constitutional Rights says it doesn’t address a fundamental problem with U.S. policy.

A group of detainees observe morning prayer before sunrise inside Camp Delta at Guantanamo Bay on Oct. 28, 2009. (Petty Officer 2nd Class Marcos T. Hernandez via Reuters)

“That policy of continuing and thus perpetual detention without charge would continue,” Kebriaei said. She represents one of the recently transferred detainees and a number still held. One client remains there, even though he was cleared in 2014.

“We need to be critiquing the policy of indefinite detention and be less concerned about the location of Guantanamo,” Kebriaei said, adding detainees are given little to no support and attention needs to be paid to what happens to them after they’re transferred.

Guantanamo Bay by the numbers 

• The detainees
• Detainees currently held at Guantanamo: 61.
• Total number of detainees ever incarcerated at Guantanamo: 780, with a peak population of 684 in June 2003.
• Detainees released under President George W. Bush: Over 500.
• Detainees at the start of Barack Obama’s presidency: 242.
• Detainees transferred to U.S. for prosecution: 1.
• Number of current detainees imprisoned for more than 10 years: 44 (72 per cent of total population).
• Remaining detainees approved for release: 20.
• Yemenis approved for transfer: 12 (transferred to the United Arab Emirates, along with three Afghans, on Monday, Aug. 15, 2016).
• Detainees convicted by military commission and still held at Guantanamo: 3
• Detainees who have died at Guantanamo: 9.

• Additional history
• First detainees brought to Guantanamo: Jan. 11, 2002.
• Last known arrival: March 14, 2008.
• Bounties paid by the Bush administration to anyone who would hand over a possible terror suspect: $3,000 to $25,000 US.

— From Human Rights First fact sheet