41 prisoners remain at Gitmo as Obama leaves office
During President Barack Obama's final days in office, the population at Guantánamo Bay prison shrunk again but he fell short of his promise to close the facility.
On Jan. 19, the day before Donald Trump's inauguration, Obama sent a two-page letter to Congress about the prison population.
"Of the nearly 800 detainees at one time held at the facility, today only 41 remain," Obama wrote.
Obama argued that terrorists use the prison as propaganda to recruit and that the expensive costs -- about $11 million to house each captive -- drain military resources.
He made his final plea to Congress to close the prison: "Guantanamo is contrary to our values and undermines our standing in the world, and it is long past time to end this chapter in our history."
When we wrote our previous update Dec. 12, the population stood at 59. The Obama administration worked to reduce it further in the final weeks of his presidency.
The largest reduction since that time was on Jan. 16 when the Arabian Sea nation of Oman said it had taken in 10 Guantánamo captives, according to the Miami Herald, which has tracked the prisoner population.
Obama reduced the prison population from 242 detainees when he first took office in 2009, but the prison remains open.
Trump tweeted in January that he wanted the White House to halt transfers, but the White House rejected that idea. We are tracking Trump's campaign promise to keep Gitmo open.
For Obama, this pledge remains Promise Broken.
Miami Herald, "Final Obama transfer leaves 41 prisoners at Guantánamo," Jan. 19, 2017
Miami Herald, "U.S. sends 10 Guantánamo captives to Oman," Jan. 16, 2017
Trump-O-Meter, Guantanamo promise, Jan. 17, 2017
Obama shrunk Guantánamo Bay population but it will remain open
President Barack Obama is running out of time to deliver on his promise to close the detention facility at Guantánamo Bay.
On Jan. 22, 2009, Obama issued an executive order calling for the closure of the prison facility at the U.S. Navy base in Cuba within one year. But Congress didn't agree with Obama's goal and banned the transfer of detainees to facilities within the United States.
Obama has, however, significantly reduced the number of detainees by 76 percent.
As of Dec. 10, 2016, the facility had 59 captives, including 21 approved for transfer or repatriation to their homelands, according to the Miami Herald, which has tracked prisoners and spending since the facility opened under President George W. Bush after the Sept. 11, 2001, terrorist attacks.
Of the remaining captives, 10 are charged with war crimes and 29 are "forever prisoners," who are considered too dangerous to release but ineligible for war-crimes trial.
The New York Times reported on Dec. 4 based on anonymous sources that Defense Secretary Ashton B. Carter recently gave a 30-day notice to Congress that eight cleared detainees would be transferred several weeks from now.
White House press secretary Josh Earnest said Dec. 5 that the administration was still working on arrangements to relocate the remaining prisoners eligible for transfer.
The White House has consistently argued for the facility's closure on the basis that it is expensive and is used for recruiting purposes by terrorist groups. The U.S. government spends about $445 million a year for detainee operations and staff, which is currently around 1,700 troops and civilians -- a cost that critics calculate as about $7.58 million a year per detainee.
"We continue to be strongly opposed to the politically motivated effort by the Congress to prevent and obstruct the successful closure of the prison," Earnest said.
Cully Stimson, who served as Deputy Assistant Secretary of Defense for Detainee Affairs during Bush's administration, said Obama shares blame with his own party for failing to close Gitmo.
"President Obama failed to close the detention facility at Guantánamo Bay for one simple reason: He failed to spend the political capital necessary to do so in 2009/2010 when the Democrats were in the majority in the Senate and House," said Stimson, who is a senior legal fellow at the conservative Heritage Foundation.
While the Democrats were in charge of both chambers, Congress passed legislation requiring the administration to notify Congress of impending transfers and later barring Obama from spending money to bring detainees to the United States or from purchasing a stateside facility to hold Gitmo detainees, Stimson said.
Ken Gude, senior fellow at the liberal Center for American Progress, said that Congress interfered in ways that it never did during the Bush administration to impose barriers to make it difficult for Obama to close Gitmo. But he says that the reduction in detainees under Obama is an achievement.
When Obama first took office in 2009, there were 242 detainees at the facility. Under Obama's administration, 179 detainees have been moved to 42 countries for repatriation, resettlement, or prosecution. (The Bush administration released about 540.)
"They have moved out just about all the detainees you can conceive of being transferred out of U.S. custody," he said. "It seems unlikely that number will increase substantially."
University of Texas law professor Stephen Vladeck, a former Guantánamo defense lawyer, said Obama can claim victory on another front of this promise: Not a single detainee was sent to Guantánamo during Obama's tenure.
"It is still true that failing to close Guantánamo will go down as one of the most visible unfulfilled promises of the Obama years, and it is worth holding the president to task for that failure," he said. "But we ought not to allow that failure to obscure the important steps forward that we've taken at the same time — steps that may well be reversed by President Obama's successor."
Republican President-elect Donald Trump criticized Obama's approach and campaigned on a promise to keep Gitmo open. In February, Trump vowed to "load it up with some bad dudes" but operate it at a "tiny, tiny" fraction of the current cost.
"Maybe in our deal with Cuba, we get them to take it over and reimburse us," Trump has said.
Obama has not delivered on his promise to close Guantánamo Bay. We rate this Promise Broken.
The American Presidency Project, President Barack Obama order, Jan. 22, 2009
White House, Press briefing by Josh Earnest, Dec. 5, 2016
YouTube, Clip of Donald Trump speech, Feb. 23, 2016
Miami Herald, "What will President Trump do with Guantánamo?" Nov. 11, 2016
Miami Herald, By the numbers, Accessed Dec. 5, 2016
Miami Herald, "Trump talks about his plans for Guantánamo in exclusive interview," Aug. 11, 2016
New York Times, "Guantánamo Detainee Is Sent to Cape Verde in First Transfer Since the Election," Dec. 4, 2016
Interview, Emily Horne, White House spokeswoman Dec. 5, 2016
Interview, Charles "Cully" Stimson, senior legal fellow at the Heritage Foundation, Dec. 5, 2016
Interview, Ken Gude, senior fellow at the Center for American Progress, Dec. 6, 2016
Interview, Stephen Vladeck, University of Texas law professor, Dec. 6, 2016
Obama releases plan to close Guantanamo, but enactment unlikely
With less than a year to go on his presidency, President Barack Obama released a last-ditch plan to close the the detention facility at Guantanamo Bay, a proposal that would include moving some detainees to prison facilities within the United States.
But in an election year, it appears highly unlikely that a Republican-led Congress will do anything to help bring Obama's 2008 campaign promise to to fruition. Several Republicans immediately vowed to block the plan, including U.S. Sen. Marco Rubio of Florida and Senate Majority Leader Mitch McConnell of Kentucky. One Republican senator, Pat Roberts of Kansas, tweeted a video of himself crumpling up the proposal and tossing it in a trash can.
The plan, released Feb. 23, 2016, explains how to proceed with the remaining 91 detainees, a number that includes 35 who are eligible for transfer and 10 in some phase of the military commission process. Since the creation of the detainee facility, nearly 800 detainees have been held at Guantanamo.
In addition to continuing the transfers, the plan includes accelerating the review of certain detainees who have not been charged or convicted.
For 30 to 60 detainees, the plan calls for working with Congress to relocate them "to an appropriate site in the continental United States while continuing to identify other appropriate and lawful dispositions."
The plan doesn't identify a site in particular, but Pentagon officials are known to have visited sites in multiple states, including South Carolina, Colorado and Kansas.
Administration officials said that the United States could operate such a site in the United States for $65 million to $85 million less than what Guantanamo costs, which is about $445 million a year.
Speaking from the White House, Obama once again laid out his his case for closing Guantanamo.
"For many years, it's been clear that the detention facility at Guantanamo Bay does not advance our national security -- it undermines it. ... Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world."
Ken Gude, senior fellow at the liberal think tank Center for American Progress, told PolitiFact that the plan represents the best and most secure manner to close the facility.
Despite this, he added, "there is virtually no chance that Congress will approve this plan in its entirety."
It's worth noting that Obama could do part of his proposal on his own, such as continuing to transfer detainees to other countries. But Congress can block other crucial parts of the plan, including whether some detainees will be allowed into the United States. If Congress prevents Obama from moving detainees to the U.S. mainland, the president could look to move even more abroad, Gude said.
Amnesty International released a statement criticizing the plan to move detainees for continued detention without charges:
"The possibility of a new, parallel system of lifelong incarceration inside the United States without charge would set a dangerous precedent. ... Guantánamo must be closed by addressing the problem head-on, not moving it somewhere else."
The prospects for closing Guantanamo became less likely late in 2015, when Obama signed a broader defense bill on Nov. 25, 2015 that prohibited the use of Pentagon funds to close Guantanamo.
That bill gave the administration a deadline of three months to present a plan to Congress to close the facility, a timeline that led to the current proposal.
Stephen Vladeck, an American University law professor who specializes in national security law, told PolitiFact that "nothing's going to happen until the lame-duck session at the absolute earliest," referring to the part of the current congressional session that takes place after the November election.
In a blog post, Vladeck offered a simple explanation for the absence of any movement: "It's an Election Year, stupid!" He offered only one hope for passage during Obama's term: If a Democrat wins the presidency and the Democrats pick up seats in the Senate, then Obama may have a more willing partner.
"There may well come a point where Republicans in the 114th Congress would rather make a deal with President Obama than leave things to the 115th Congress and his successor," he wrote.
This is one of the promises that we have rated at various times In the Works, Stalled and Broken depending on Obama's action and Congress' interest -- or not -- in closing the facility.
Obama has reduced the population at Gitmo, and the numbers of detainees is slated to keep dropping. But the chances of it closing entirely before his presidency ends appear slim. We will wait to see how his plan progresses during his final year before we give it a final rating, but for now we continue to rate this promise Stalled.
White House, Background Press Call on the Closing of the Prison at Guantanamo Bay, Feb. 23, 2016
White House, "Remarks by the President on Plan to Close the Prison at Guantanamo Bay," Feb. 23, 2016
U.S. Sen. Marco Rubio, "President Obama's 'Plan' to Close Guantanamo Bay Is Dangerous," Feb. 23, 2016
Amnesty International, "Amnesty International USA Statement on Obama Plan to Close Guantánamo," Feb. 23, 2016
New York Times, "Obama Sends Guantánamo Closing Plan to Congress," Feb. 23, 2016
Miami Herald, "91 Guantánamo captives vastly outnumbered by 2,000 guards, staff," Feb. 21, 2016
Miami Herald, "Obama pushes plan to close Guantánamo prison," Feb. 23, 2016
Email interview with Ken Gude, senior fellow at the Center for American Progress, Feb. 23, 2016
Email interview with Stephen Vladeck, American University law professor, Feb. 24, 2016
'Disappointed' Obama signs defense bill making it harder to close Gitmo
President Barack Obama's 2008 promise to close the detention facility at Guantanamo Bay had another setback on Nov. 25 when he signed a law that makes it tougher to achieve his goal.
The National Defense Authorization Act prohibits the use of funds to close Gitmo. It also bans using funds to transfer or release detainees to the United States or to construct or modify facilities in the United States to house detainees from Gitmo. The administration had been crafting a plan to move at least some of the remaining captives to military prisons in the United States, potentially to Colorado, Kansas or South Carolina.
The law appears to make it impossible for Obama to close the facility where 107 captives remained as of Nov. 23.
In a statement when he signed the bill on the eve of Thanksgiving, Obama said that he was "deeply disappointed" that Congress failed to move toward closing the detention facility.
"The continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists. It is imperative that we take responsible steps to reduce the population at this facility to the greatest extent possible and close the facility. The population once held at Guantanamo has now been reduced by over 85 percent. Over the past 24 months alone, we have transferred 57 detainees, and our efforts to transfer additional detainees continue. It is long past time for the Congress to lift the restrictions it has imposed and to work with my Administration to responsibly and safely close the facility, bringing this chapter of our history to a close."
Earlier, on Oct. 22, Obama vetoed the bill because of the Guantanamo language and over a dispute about military funding. But after Obama signed off on a two-year budget deal, White House spokesman Josh Earnest said that Obama would sign the defense bill.
Earnest said that the administration still planned to send to Congress a "thoughtful, carefully considered plan for closing the prison at Guantanamo Bay, and a plan that we believe merits the strong support of both Democrats and Republicans in the Congress."
About a week before he signed the defense bill, Obama reiterated his promise to shut down Gitmo in remarks on Nov. 19:
"We can keep the American people safe while shutting down that operation. We've already reduced drastically the populations. Keep in mind that the bulk of people who are released from Guantanamo were done so under the previous administration, before I even came in. We have reduced that population further, and I expect that early by next year we may even have fewer than 100 people at Guantanamo. We are spending millions of dollars per detainee, and it's not necessary for us to keep our people safe.
So we are going to go through meticulously, with Congress, what our options are and why we think this should be closed. I guarantee you there will be strong resistance, because in the aftermath of Paris, I think that there is just a very strong tendency for us to get worked up around issues that don't actually make us safer but make for good political sound bites."
So is Obama out of options here?
Charles "Cully" Stimson, senior legal fellow at the conservative Heritage Foundation, said by signing the defense bill, it makes it less likely that closing Gitmo will be done by a legislative route. Congress is unlikely to want to work with Obama -- particularly against the backdrop of the Paris attacks and ISIS.
Officials in his administration have discussed the possibility of using executive authority alone to close the detention camp. But legal experts are divided about whether that is possible.
However, that doesn't rule out what would essentially be closure by attrition.
"They are going to step up attrition," Stimson predicted. "If they step it up, they might get down to a very small number of people."
Naureen Shah, director of security and human rights at the U.S. section of Amnesty International, said that Obama still has options.
"There are a lot of detainees who would have been willing -- or are willing -- to take plea deals in U.S. courts without setting foot on U.S. soil," she said. That could lead to some of them ultimately getting released.
"He needs to get as many people out as possible before he leaves office -- it's a matter of whittling down the 107," she said.
This is one of the promises that we have rated at various times In the Works, Stalled and Broken. At times, it has appeared that Congress was easing its opposition. But by signing the defense bill, Obama has made it harder to achieve his promise. We still want to see what final actions he might take in his remaining 14 months in office before we settle on a final rating, but for now we continue to rate this promise Stalled.
Government Printing Office, Senate Bill 1356, Sent to President Obama Nov. 17, 2015
White House, Statement by the President, Nov. 25, 2015
White House, Press briefing by Press Secretary Josh Earnest, Nov. 10, 2015
White House, "Remarks by President Obama and Prime Minister Trudeau of Canada after bilateral meeting," Nov. 19, 2015
Miami Herald, Guantanamo, Accessed Nov. 23, 2015
Miami Herald, "Pentagon to search for 'Guantanamo North' in Colorado," Oct. 2, 2015
Miami Herald, "Defense legislation forbids moving Guantánamo captives to U.S., returning base to Cuba," Sept. 30, 2015
Foreign Policy, "To close Guantanamo, Obama will have to test the limits of presidential power," Nov. 15, 2015
Reuters, "Obama to sign defense bill with Guantanamo restrictions," Nov. 10, 2015
Amnesty International, Letter to President Barack Obama, Oct. 19, 2015
Interview, Eric Schultz, White House spokesman, Nov. 23, 2015
Interview, Naureen Shah, director of security and human rights program at U.S. Section Amnesty International, Nov. 23, 2015
Interview, Charles "Cully" Stimson, senior legal fellow at the Heritage Foundation, Nov. 23, 2015
Interview, Ken Gude, Senior Fellow at the Center for American Progress, Nov. 23, 2014
Small but tangible progress moves the meter off of Promise Broken
We've been following President Barack Obama's campaign promise to close the detention center at Guantanamo Bay for more than five years now.
For most of Obama's time in office, Congress has made closing the prison difficult through various pieces of legislation, including bans on sending prisoners to particular countries and tough requirements for the government to meet in order to transfer detainees from the prison.
As a result, the prison stayed open, and progress towards closure ground to a halt. Because the Obameter measures outcomes and not intentions, we rated this Promise Broken.
Recently, however, Congress appears to be softening its opposition, and that's made the promise worth another look.
On Dec. 19, the Senate passed the National Defense Authorization Act for 2014, which contained a provision making it easier for the government to transfer detainees to foreign countries. Before detainee transfers could take place under the old law, the defense secretary had to make detailed certifications about security and other issues in the host country, to assure Congress that released detainees would not engage in terrorist activities in their new country. Congress eased many of these restriction
"It was the first time Congress has voted to make it easier to close Guantanamo Bay, rather than make it harder," said Ken Gude, a senior fellow at the liberal Center for American Progress.
Just more than a week after the Senate passed the National Defense Authorization Act, the Pentagon announced the transfer to Slovakia of the last three Uighur detainees held at Guantanamo Bay. At one time, the prison held 22 Uighurs -- members of an ethnic group from China -- and their detention was a major point of criticism from those lobbying for the closure of the prison. The Uighurs could have faced torture and execution if they were sent back to China.
A judge ordered the remaining Uighur prisoners to be released in 2008, but the government struggled to find a place to send the prisoners.
The transfer of the three remaining Uighur prisoners seems to be more of a "change in prioritization" than an outright change in policy from the Obama administration, said Zeke Johnson, director of Amnesty International's Security with Human Rights Campaign. He said the transfers had long been in the works, but the government was finally able to find a place to move the prisoners.
Overall, there are now 155 detainees being held at Guantanamo Bay, according to the Miami Herald, with 77 approved for transfer.
Making it clear his administration still holds closing the prison as a priority, President Obama recommitted to his promise during his January State of the Union address.
"With the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay," Obama said.
Obama didn't have to wait long after his State of the Union speech to see a potentially important move towards closing the prison. Last week, Ahmad al Darbi, a Saudi Arabian prisoner in custody since 2002, pled guilty to terrorism-related charges, which opened the door to his being released from the prison as soon as 2018.
In addition to marking an endpoint for his own detention, the plea deal compels Darbi to testify against other detainees.
The deal was a sign of progress toward closing the prison, said Cully Stimson, a senior legal fellow at the conservative Heritage Foundation and former deputy assistant secretary of defense for detainee affairs.
Stimson said he expects the Obama administration to continue working to improve relations with Yemen, the country from which many prisoners hail. Improved relations with the country could help speed up the rate of transfers for the remaining Yemeni prisoners, he said.
"I'm sure (Obama) wants Guantanamo Bay closed, it's whether he spends the political capital, and he's going to need to spend a lot, to get it done," Stimson said.
A less obvious impediment to Obama's plan to close the prison is the impending retirement of Sen. Carl Levin, D-Mich. Levin was a major proponent of closing the prison, even at one point considering allowing prisoners to come to his home state to be tried if there was enough local support for the proposal.
Overall, it seems like Obama is making small but tangible progress on keeping this promise. However, a significant amount of work remains, and there are many restrictions on transfers still on the books, so we can only move the meter so far -- from Promise Broken to Stalled.
Phone interview with Zeke Johnson, Director of Amnesty International's Security with Human Rights Campaign, February 20, 2014
Phone interview with Charles "Cully" Stimson, senior legal fellow at the Heritage Foundation, February 20, 2014
Phone interview with Ken Gude, Senior Fellow at the Center for American Progress February 24, 2014
Miami Herald, Saudi pleads guilty to terror charges, could get out of Guantanamo in 2018, February 20, 2014
The New York Times, Freedom for Chinese Detainees Hinges on Finding a New Homeland, November 8, 2004
American Civil Liberties Union, Senate Eases Transfer Restrictions for Guantanamo Detainees, December 20, 2013
The Miami Herald, Some Guantanamo captives' family may visit, but no overnight stays, February 18, 2014
Michigan Live, Michigan non-committal on housing Guantanamo Bay detainees in state, May 21, 2009
Congressional Research Service, The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters (PDF)
New developments, but congressional opposition remains
Since 2008, when Obama made this promise to close Guantanamo Bay, it has been all over the map on our meter, from In the Works to Stalled (and back a few times) and now Promise Broken. Obama and Congress have been at an impasse for several years now.
But recent Guantanamo news has led us to re-examine this promise. In a May speech, Obama clearly emphasized his continuing desire to close the prison. He called on Congress to lift restrictions on transferring detainees to other countries and reminded the public of the 67 detainees he did already successfully transfered.
Then, the White House announced July 26 that the Defense Department notified Congress of two detainee transfers to a prison in Algeria, the first in almost a year. Three months ago, Obama lifted a moratorium that banned the transfer of prisoners to Yemen, where many of them are from.
Another indicator of Obama's attempt to make good on his promise is his creation of a Pentagon position dedicated to handling detainee transfers.
Scott Shershow, an English professor and historian studying the war on terror at the University of California, Davis, said that aside from Obama's obstacle of winning over Congress, the issue of dividing up prisoners for transfer brings a host of other problems.
"A genuine ‘closure' of Guantanamo would have to accept the possibility of letting someone out who could still be dangerous,” he said.
And a July 24 congressional subcommittee hearing on closing Guantanamo didn't make the outlook for Obama seem more promising. Republicans showed apprehension about moving prisoners to Marion, Ill. or any other U.S. location. "I would note we have had multiple instances of individuals in federal prisons engaging in terrorism,” said Sen. Ted Cruz, R-Texas.
Republican opposition to national or international detainee transfers leaves Democrats unsure of how they can proceed. Sen. Dianne Feinstein, D-Calif., who chairs the Intelligence Committee, poked at that larger issue by asking, "If there is no alternative prosecution in a federal court, they remain without charge or trial until the end of time?” There's nothing Congress can do with prisoners who can't be tried, short of setting them free.
Matthew Waxman, who chairs the Columbia Law School's national security program and has previously worked for the State and Defense departments, said for Obama to close Guantanamo is "probably impossible,” given the political barriers.
Even if Obama could close the prison before leaving office, Waxman noted that he is bound to leave his successor with a host of legal battles. Closing Guantanamo would bring up many more debates about armed conflict with al-Qaida and when the war on terror should be declared over.
It's not that Obama has given up on the issue. Far from it. But for serious Guantanamo progress, he would need some unlikely help from Congress. We'll keep our eye on the issue throughout his presidency, but for now the meter stays at Broken.
Email interview with University of California, Davis professor Scott Shershow, July 31, 2013
Lawfare, "Closing Guantanamo Would Still Leave Some Toughest Decisions for the Next President,” July 30, 2013
New York Times, "Obama Lifts Moratorium on Transfer of Detainees,” May 23, 2013
Peace Review, "Beyond and Before the Law at Guantanamo,” September 1, 2004
United States Senate Committee on the Judiciary, "Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” July 24, 2013
Washington Post, "Obama Administration to Transfer Two Guantanamo Bay Detainees,” July 26, 2013
White House, "Remarks of President Barack Obama,” May 23, 2013
Obama announces changes to Guantanamo detention policy
On March 7, 2011, President Barack Obama signed an executive order making a number of changes to policies regarding those detained at Guantanamo Bay, Cuba. In a reversal of his previous policy, the order resumes military trials for Gitmo detainees. It also establishes a "periodic review" process for for long-held Guantanamo detainees who have not been charged, convicted or designated for transfer, "but must continue to be detained because they 'in effect, remain at war with the United States,'" according to a White House fact-sheet.
The new policy was viewed by many media outlets as an acknowledgment by the administration that it could not keep Obama's campaign promise to close the Guantanamo facility.
The lede of a Washington Post story said the president's executive order "will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay, Cuba, who continue to pose a significant threat to national security" and that the executive order "all but cements Guantanamo Bay's continuing role in U.S. counterterrorism policy."
The New York Times, meanwhile, said that while the order permits military trials to resume, it is also "implicitly admitting the failure of his pledge to close the prison camp."
And ABC News, said the order "sends mixed signals about the future of the controversial detention center and the president's own standing on the issue, experts say."
Although Obama did not mention the fate of Guantanamo in his brief released statement, the accompanying fact-sheet released by the White House maintains that the administration "remains committed to closing the detention facility at Guantanamo Bay" and makes the case that the policy changes are "in keeping with" the president's long-term strategy toward that end.
But civil rights groups quickly denounced Obama's order as an admission that he has turned his back on his campaign promise.
"While appearing to be a step in the right direction, providing more process to Guantanamo detainees is just window dressing for the reality that today"s executive order institutionalizes indefinite detention, which is unlawful, unwise and un-American," Anthony D. Romero, Executive Director of the American Civil Liberties Union said in a released statement. "The detention of Guantanamo detainees for nine years without charge or trial is a stain on America"s reputation that should be ended immediately, not given a stamp of approval."
"The only way to restore the rule of law is to put an end to indefinite detention at Guantanamo and the broken commissions system, and to prosecute terrorism suspects in federal criminal courts," Romero stated. "Today"s announcement takes us back a step when we should be moving forward toward closing Guantanamo and ending its shameful policies."
Tom Parker, an official with Amnesty International said the administration's insistence that it remains committed to closing Guantanamo is merely "lip service to the things President Obama previously stated."
"It's very clear he is not prepared to make the tough decisions it would require to close it," Parker said.
In an interview with the Chicago Tribune, Parker said, "With the stroke of a pen, President Obama extinguished any lingering hope that his administration would return the United States to the rule of law by referring detainee cases from Guantanamo Bay to federal courts rather than the widely discredited military commissions."
The administration, however, also maintains that it is committed to efforts to try some cases in federal court, despite Congress enacting significant roadblocks to that.
"As the Administration has long stated, it is essential that the government have the ability to use both military commissions and federal courts as tools to keep this country safe," Attorney General Eric H. Holder Jr. said in a released statement. "Unfortunately, some in Congress have unwisely sought to undermine this process by imposing restrictions that challenge the Executive Branch"s ability to bring to justice terrorists who seek to do Americans harm. We oppose those restrictions and will continue to seek their repeal."
That's hardly giving up, many experts argue.
Mason Clutter, policy counsel for the Constitution Project, a bipartisan group that has called for shutting the prison, pointed to a provision of the order that reads: "In the event detainees covered by this order are transferred from Guantanamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them."
That suggests the administration is still committed to pursuing other alternatives to Guantanamo, Clutter said,
So does she think that will happen by the end of an Obama first term?
"Absolutely not," Clutter said.
There are still 172 people being held at Guantanamo, Clutter said. Congress has pretty well tied the administration's hands, prohibiting prosecution in U.S. federal courts and making it extremely difficult to transfer them to other countries, according to Clutter.
"Even if the review board determines someone should be released," Clutter said, "it will be hard to transfer them out of Guantanamo."
In other words, for the time being, there are no options other than Guantanamo. Until they figure out what to do with all of the detainees, Clutter said, it seems pretty clear they will remain at Guantanamo.
Duke University law professor Scott Silliman thinks it's premature to call this promise broken. The actions taken by Obama seek to reduce the number of detainees at Guantanamo over time. Obama has expanded the review process for those for whom there will never be a criminal trial.
"He hasn't given up on closing Guantanamo Bay," Silliman said. "Obviously, it's not going to happen soon." Given the political reality of the situation, he said, "Guantanamo is probably going to be open for a couple more years."
Kate Martin, director of the Center for National Security Studies in Washington, also contests the idea that that Obama's actions amount to an admission that he has broken his promise to close Guantanamo.
"I don't know where it's come from that they've thrown in the towel," Martin said.
The White House has long said it intended to try some of the detainees in military court. Martin said. And it has long maintained that it intended to hold some as law of war detentions (detentions based on legal principles of international law for nations during wartime). She noted that Congress' prohibition on transfers to federal courts in the U.S. expires in September and that Obama ought to have at least until then to change Congress' mind.
We disagree. Obama has now had a full two years in office, and the possibility of keeping this extremely difficult promise seems even more remote now than when his presidency began. Some argue that Congress is largely to blame, while others say Obama simply made a political calculation not to expend too much political capital on it. But blame is not the final arbiter of whether a promise is kept or broken. The administration has clearly not backed off claims that it continues to pursue this promise. But even those who think this promise is merely stalled instead of broken acknowledge that it's unlikely Guantanamo will be closed by the end of Obama's four-year term. We're not inclined to extend the timeline for this promise into a second term when resolution between now and then seems unlikely. We will revisit our rating should the situation change dramatically, but for now, we are moving this to a Promise Broken.
White House website, Statement by President Barack Obama on "New Actions on Guantanamo Bay and Detainee Policy," March 7, 2011
White House website, Fact Sheet: New Actions on Guantanamo and Detainee Policy, March 7, 2011
White House website, Executive Order: Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, March 7, 2011
ACLU website, Press release: President Obama Issues Executive Order Institutionalizing Indefinite Detention, March 7, 2011
U.S. Department of Justice, Statement of the Attorney General on Guantanamo Bay and Detainee Policy, March 7, 2011
Washington Post, Op-Ed: "Obama's new Gitmo policy is a lot like Bush's old policy," by Dana Milbank, March 8, 2011
Washington Post, "Obama creates indefinite detention system for prisoners at Guantanamo Bay," by Peter Finn and Anne E. Kornblut, March 8, 2011
New York Times, "Obama Clears Way for Guantanamo Trials," by Scott Shane and Mark Landler, March 7, 2011
ABC News, "Decision to Resume Guantanamo Bay Military Commissions Muddies the Water," by Huma Khan, March 8, 2011
Pro Publica, "Obama Makes Indefinite Detention and Military Commissions His Own," by Dafna Linzer, March 8, 2011
Salon, "Obama's new executive order on Guantanamo," by Glenn Greenwald, March 8, 2011
Tribune Newspapers, "Guantanamo trials are resuming despite pledge," by Richard A. Serrano, March 8, 2011
Interview with Tom Parker Amnesty International, March 8, 2011
Interview with Mason Clutter, policy counsel for the Constitution Project, March 8, 2011
Interview with Duke University law professor Scott Silliman, March 8, 2011
Interview with Kate Martin, director of the Center for National Security Studies, March 8, 2011
Obama and Congress remain at odds on closing Guantanamo
President Barack Obama's campaign promise to close the Guantanamo Bay detention center has switched from In the Works to Stalled and back again (and again). All that movement reflects a simple dynamic: Obama really wants to close the center. But Congress really doesn't.
The latest turn of events was the law authorizing defense spending for 2011. In addition to funding the military for the year, members of Congress attached several stipulations about Guantanamo. The law says no funds canbe used to transfer Guantanamo detainees to the United States, and no funds can be used to transfer detainees to the custody of foreign countries, unless specific conditions are met about how the prisoners will be held.
Obama didn't like those provisions and issued a statement deploring them. He said the limitation on transferring prisoners to the U.S. is "a dangerous and unprecedented challenge to critical executive branch authority ... ." Of the new requirements on transferring prisoners to foreign governments, Obama said it could "hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security."
Obama stopped short of saying he would disregard the law, something presidents sometimes do via "signing statements." President George W. Bush issued many signing statements as president that said he would disregard parts of laws passed by Congress that he believed infringed on his executive authority. During the campaign, Obama said he would not "abuse" signing statements.
But nowhere did Obama say he would disregard the new restrictions. Instead, he said he would seek to repeal of the restrictions.
"Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011," Obama said in the statement. "Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future."
Based on Obama's statement, he clearly still wants unfettered authority to move prisoners out of the Guantanamo Bay facility. And at a press conference at the end of the year, he said it was important to close Guantanamo because it is "probably the number one recruitment tool that is used by these jihadist organizations."
"It is important for us, even as we're going aggressively after the bad guys, to make sure that we're also living up to our values and our ideals and our principles," Obama said at the press conference. "And that's what closing Guantanamo is about -- not because I think that the people who are running Guantanamo are doing a bad job, but rather because it's become a symbol. And I think we can do just as good of a job housing them somewhere else."
Obama may want to close Guantanamo, but legal impediments still stand in the way of him achieving his goal. The meter remains at Stalled.
The White House, Statement by the President on H.R. 6523, Jan. 7, 2011
The New York Times, New Measure to Hinder Closing of Guantánamo, Jan. 8, 2011
THOMAS, Ike Skelton National Defense Authorization Act for Fiscal Year 2011
The White House, News Conference by The President, Dec. 22, 2010
Plan to close Guantanamo faces opposition from Congress
Talk about a rating roller coaster! When we first reviewed President Obama's campaign pledge to close the Guantanamo Bay Detention Center in January 2009, we rated it In the Works. By May 2009, we moved it to Stalled, since the White House was facing significant opposition from Congress. In mid-October, it went back to In the Works, as Congress allowed some detainees to be temporarily moved to the United States for prosecution. That rating remained unchanged after our last update in January 2010.
We're well into the second year of Obama's administration, so we wanted to see whether things had changed since January.
First, however, a quick note. We've gotten a ton of e-mails from readers urging us to rate this Promise Broken. Obama promised to close the detention center within a year of taking office, the argument goes, and he has not done that. As we pointed out in our last update, however, he made that statement after taking office, not during the campaign. The Obameter only tracks promises that the President made on the campaign trail, when there was no such self-imposed deadline.
That said, let's look at how things have been unfolding.
In December 2009, the administration announced that it would ask Congress to appropriate money to purchase the Thomson Correctional Center in northwest Illinois to house Gitmo detainees. The plan took a blow, however, in May 2010, when the House Armed Services Committee inserted language into the 2011 defense bill which specifically prohibits the use of funds to purchase or modify any U.S. facility for Gitmo prisoners. The measure was adopted by the full House on May 28, 2010 in a 282-131 vote. The Senate Armed Services Committee adopted a similar proposal on May 28, 2010. The two proposals have yet to become law, however. In June, Assistant Attorney General Ronald Weich announced that the administration plans to go ahead with the purchase of the facility for regular domestic federal prisoners.
Even more telling, however, are statements that the House Majority Leader Steny Hoyer, D-Md, made in July 2010. Talking about closing Guantanamo, Hoyer said that "that's not an issue being discussed very broadly. I think that you're not going to see it discussed very broadly in the near term."
Finally, in May 2010 the Guantanamo Review Task Force submitted a report to Congress, which includes recommendations on how to proceed with each of the detainees. But House Armed Services Chairman Ike Skelton, a Missouri Democrat, said that Guantanamo is not at the top of his priority list. "A war is going on. That"s my concern." Senate Homeland Security and Governmental Affairs Chairman Joe Lieberman, D-Conn., said that moving prisoners from Gitmo to Illinois is "off the radar screen."
The White House maintains that President Obama is committed to closing Guantanamo, but several high-ranking lawmakers make it clear that this is unlikely to happen anytime soon. As always, we'll keep our eyes open, but for now, we are changing the rating to Stalled.
Roll Call, Guantánamo Debate Has Gone Silent on Capitol Hill, by Jennifer Bendery, July 21, 2010
ABC News Political Punch, Some Gitmo Detainees Headed to Illinois Prison, Obama Administration to Announce Tuesday, Dec. 14, 2009
The Washington Post, Most Guantanamo detainees low-level fighters, task force report says, by Peter Finn, May 29, 2010
The Washington Times, Obama's Gitmo plan takes another hit, by Stephen Dinan, May 28, 2010
Miami Herald, White House moves ahead on Illinois prison purchase, June 22, 2010
The New York Times, House Panel Rejects a Plan to Shift Detainees to Illinois, by Charlie Savage, May 20, 2010
Fox News Blogs, Key Senate Committee Rejects Obama Request for Alternate Gitmo Prison, May 28, 2010
Don Manzullo, Senate Appropriators Approve Plan to Buy and Use Thomson as Federal Prison Without Terrorists, July 23, 2010
Chicago Tribune, House votes to prohibit moving Gitmo detainees, by Katherine Skiba, May 30, 2010
The Washington Post, Votes Database: Vote 335, accessed July 26, 2010
Against obstacles, Obama still works toward closure
After the attempted bombing of a Detroit-bound jet on Christmas Day, conservatives renewed calls for Obama to abandon his plans to close the Guantanamo Bay detention facility.
"Guantanamo remains the proper place for holding terrorists, especially those who may not be able to be detained as securely in a third country," said Sen. Mitch McConnell, the Republican Senate leader.
After the attack, Obama halted transfers of detainees to Yemen, the country where the alleged bomber, Umar Farouk Abdulmutallab, may have received instructions on how to blow up the aircraft. But White House officials said Obama remains committed to closing the facility, and the plan to close the prison seem to keep moving forward, slowly.
The Obama administration has identified a prison in Thomson, Ill., that it hopes to acquire and renovate for detainees now at the Guantanamo Bay detention center in Cuba, and officials are working out details for funding the plan. The Senate seems amenable to the idea; in November, the Senate rejected a measure to restrict funds for the facility.
Obama said after the inauguration that he hoped to close Guantanamo within one year, and administration officials admit they won't make that deadline. During the campaign, Obama gave himself no such deadline, and we're judging him here on his campaign promises. He said he would close Guantanamo Bay, and concrete steps are being taken to do so. The promise remains In the Works.
U.S. Senate, Senate vote, To prohibit the use of funds appropriated or otherwise made available by this Act to construct or modify a facility in the United States or its territories to permanently or temporarily hold any individual held at Guantanamo Bay, Cuba, Nov. 17, 2009
The Washington Post, In Senate vote, signs of shift on detainees, Nov. 18, 2009
Bloomberg, Guantanamo Detainees Won"t Be Sent to Yemen for Now, Jan. 5, 2009
Congress moves to allow some detainees on U.S. soil
President Barack Obama is again making progress in his effort to close the detention center at Guantanamo Bay, Cuba.
The House of Representatives voted Thursday, Oct. 15, 2009, to allow some prisoners there to be temporarily transferred to the United States for prosecution.
Promise No. 177 made its first appearance on the Obameter on Jan. 21, 2009, the day after Obama was sworn into office. The new president had just directed prosecutors to suspend legal proceedings against the suspected terrorists held at the facility. A day later, the administration issued an executive order to review the disposition of the prisoners and ordered that the facility be shut down within a year.
But by May, Obama's plans had begun to unravel. Congressional Republicans and Democrats said Obama needed to detail what he would do with the approximately 240 detainees held at the prison.
"The president, unwisely, in my view, announced an arbitrary timeline for closing Guantanamo of next January without a plan to deal with the terrorists who are incarcerated down there," said Senate Republican leader Mitch McConnell at the time.
The opposition culminated in a May 20 vote, when the Senate voted to strip $80 million meant to shutter the facility from a war spending bill. House Democrats had already refused to include the funding in their version of the legislation.
Without support in Congress, Obama's plan to close down Guantanamo Bay had clearly reached a roadblock, so we decided to move Obama's promise from In the Works to Stalled.
Now, nearly five months later — with his one-year deadline looming — Democrats have changed their tune. In the Homeland Security Department funding bill is a provision that would allow detainees to temporarily be transferred to U.S. soil for prosecution. Nevertheless, members of Congress still want the White House to come up with a plan for the future of the detainees and the facility. And the legislation is expected to face opposition in the Senate.
But given these latest developments in the Guantanamo Bay debate, we're going to move this promise back to In the Works. We'll be watching the issue closely to see whether the rating holds.
More difficulties, this time from inside White House
Promise No. 177 has hit another snag.
On the campaign trail, President Barack Obama promised to close the detention center at Guantanamo Bay. Two days after he took office, he vowed to close it within a year — by Jan. 22, 2010.
But his effort has been slowed by the difficulty in finding a place to house the approximately 240 prisoners held there and resistance from Congress. In May, the Senate refused to fund Obama's efforts to close the center until he provided more detail on what, exactly, he intended to do with the detainees housed there. Now, Gregory Craig, the White House insider who was put in charge of the effort, is being removed from the project, according to a Sept. 25, 2009, Washington Post article.
The Post article, co-written with ProPublica, said the White House will have difficulty meeting the deadline four months from now.
So, closing the detention center continues to encounter difficulties. We'll keep it at Stalled.
Washington Post and ProPublica, White House regroups on Guantanamo , Sept. 25, 2009
Congress balks at Obama's plan
President Barack Obama's plan to close the detention center at Guantanamo Bay, Cuba, has run into significant opposition, most notably from members of his own party who stripped millions of dollars to shutter the facility from a war funding bill.
Closing the prison has been one of Obama's signature issues since he was a candidate. On January 20, 2009, the day he was sworn in, he directed prosecutors to file a motion to suspend legal proceedings against the suspected terrorists held at the facility. Two days later, the administration issued an executive order to review the disposition of the prisoners and ordered that the facility be shut down within a year.
For weeks, Republicans have opposed Obama's plan, voicing concern that the administration has not said what will happen to the approximately 240 detainees housed at the center.
"The president, unwisely, in my view, announced an arbitrary timeline for closing Guantanamo of next January without a plan to deal with the terrorists who are incarcerated down there," said Senate Republican leader Mitch McConnell.
House Democrats have similar concerns; they refused to include the $80 million requested by the administration to close the facility in the war spending bill. Senate Democrats initially included the money in their $91.3 billion version of the measure, but then stripped it out by a 90-6 vote on May 20.
"This is neither the time nor the bill to deal with this," said Democratic leader Harry Reid. "Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president," though Reid stressed that he still believes closing the facility is a good idea.
Just five months ago, Reid had softer words for Obama's executive order, saying that, at first blush, it appeared "to lay out a responsible and careful path that maintains every effective tool needed to defeat terrorists. In fact, I am convinced these changes will strengthen and enhance our counterterrorism efforts."
White House spokesman Robert Gibbs said the administration still aims to follow the executive order and seal off the facility within a year. Meanwhile, Obama plans to offer more details on his strategy for dealing with the prisoners in speech on May 21.
Obama's efforts to close down Guantanamo Bay are not dead, but they have clearly reached a roadblock. Based on these latest actions, we're moving the Obameter to Stalled and will be watching how it develops over the next few months.
CQ Politics, Sen. Mitch McConnell's Comments on Guantanamo Bay , May 19, 2009
CQ Politics, Sen. Harry Reid's comments on Guantanamo Bay , May 19, 2009
White House, Transcript of Briefing of Press Secretary Robert Gibbs , May 19, 2009
Executive Order to close Gitmo
On his second full day in office, President Obama issued an executive order to review the disposition of prisoners being held at the naval base at Guantanamo Bay, Cuba, and ordered that the detention facility be closed within a year.
According to the administration, closure of the facility is the ultimate goal. The order establishes a review process with the goal of disposing of the detainees before closing the facility.
According to the White House, "The Order sets up an immediate review to determine whether it is possible to transfer detainees to third countries, consistent with national security. If transfer is not approved, a second review will determine whether prosecution is possible and in what forum. The preference is for prosecution in Article III courts or under the Uniform Code of Military Justice (UCMJ), but military commissions, perhaps with revised authorities, would remain an option. If there are detainees who cannot be transferred or prosecuted, the review will examine the lawful options for dealing with them. The Attorney General will coordinate the review and the Secretaries of Defense, State, and Homeland Security as well as the DNI and the Chairman of the Joint Chiefs of Staff will participate."
The order also requires that conditions of confinement at Guantanamo, until its closure, comply with the Geneva Conventions.
"The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals," Obama said after signing the order.
The executive order clearly comports with Obama's campaign pledge to close Gitmo, and now sets the timeline for one year. But there is still work to be done, and until the detention center actually closes, we'll keep the status at In the Works.
Obama gets 120 days to review cases at Gitmo
On the day he was inaugurated, the Obama administration took a major step toward his promise to close the Guantanamo Bay Detention Center when it directed prosecutors to file a motion seeking to suspend legal proceedings against detainees.
The motion asks for 120 days in order to give the administration "time to review the military commissions process, generally, and the cases currently before military commissions, specifically."
A judge in one of the war crimes cases, Army Col. Stephen Henley, issued a ruling Wednesday agreeing to suspend the proceedings at the naval base in Guantanamo Bay, Cuba, pending the 120-day review.
According to the motion filed at the request of President Obama, the 120-day suspension of proceedings will provide the administration "time to conduct a review of detainees currently held at Guantanamo Bay, Cuba, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution."
The review is seen as a major first step toward his promise of ultimately closing the controversial detention facility opened after the Sept. 11, 2001, terrorist attacks.
It was hailed by the American Civil Liberties Union and other civil rights organizations that have criticized the legal processes at Guantanamo as unconstitutional.
"On Day One, President Obama kept his promise to halt the unconstitutional military commissions by ordering the prosecution to seek a 120-day suspension," said Anthony D. Romero, Executive Director of the ACLU. "Had the proceedings continued, the Bush administration would have permanently tied his hands and stopped him from being able to fulfill a top-level campaign promise. Within the next 120 days, we trust that the president's team will be studying and finalizing plans and a timeline for permanently closing Guantanamo, shuttering the military commissions and ensuring justice is served in the best of American traditions. President Obama's 'time out' comes at the perfect time in these shameful military commissions and shows he means business on Day One. President Obama has to restore an America we can be proud of again by once and for all shutting down Guantanamo and its shameful military commissions."
There's still a ways to go for Obama to fulfill the promise of closing the facility. But this motion was a significant first step, enough for us to move the needle to In the Works.
U.S. v. Khalid Sheikh Mohammed, et al., Request For 120-Day Continuance In The Interest Of Justice , Jan. 20, 2009
Washington Post, Obama Seeks Halt to Legal Proceedings at Guantanamo , by Peter Finn, Jan. 21, 2009