Obama, Not Congress, Is the Reason Guantánamo Is Still Open

During a news conference earlier this week, President Obama was asked about the mass hunger strike at the Guantánamo Bay detention facility. The president said it does not surprise him “that we’ve got problems in Guantánamo,” and it’s why he still believes “that we’ve got to close” it down. Obama ordered Guantánamo shuttered as one of his first acts in office, but more than four years later it is open. The president blamed Congress for the failure to deliver on his pledge. “I’m going to go back at this” and “reengage with Congress,” Obama vowed.

Congressional restrictions have made it more difficult to transfer or relocate Guantánamo detainees. But congressional opposition is not the only reason Guantánamo’s cells are occupied. Closing Guantánamo has always been a tricky proposition—one that is far more difficult than the president’s rhetoric implies.

Consider the findings of Obama’s own Guantánamo Review Task Force, which reviewed the files on the 240 detainees held as of January 2009. The task force’s final report, issued in January 2010, outlined the various national security challenges closing Guantánamo entails. Indeed, the report goes a long way toward explaining why 166 detainees remain in their cells to this day.

The task force split the detainee population into three general categories: those who will stay in indefinite detention, those who should be prosecuted, and detainees who have been approved for transfer.

Forty-eight detainees were placed in the first category, as they were “determined to be too dangerous to transfer but not feasible for prosecution.” They will stay in indefinite detention at Guantánamo or some other location for the foreseeable future.

Oddly, the president’s discussion of Guantánamo this week was at odds with his own task force’s recommendations. The president ticked off the reasons why he believes indefinite detention is unnecessary. “Why are we doing this?” Obama asked rhetorically. “I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum-security prisons around the country. Nothing’s happened to them. Justice has been served.”

But the Obama administration has determined that dozens of men must remain in detention without prosecution. Moving them to a maximum-security prison without trial simply substitutes Gitmo North for Gitmo South.

The task force referred a second category of detainees, 36 in all, “for prosecution either in federal court or a military commission.” These proceedings have progressed far too slowly, and few trials have been brought to a close. Still, the task force slated these detainees for prosecution, not freedom.

The precise counts have changed since the task force issued its final report in 2010, but about half of today’s detainee population falls into these first two categories. According to a recent article published by Reuters, 80 of the 166 detainees are held in indefinite detention, awaiting prosecution, or have already been either charged or convicted by a military commission.

The final 86 detainees have been “approved for transfer,” but their status is widely misunderstood. The press frequently reports that these detainees have been “cleared for release.” The implication is that these detainees have been deemed innocent and can be safely released without any cause for concern. If that were true, of course it would be outrageous for the U.S. government to continue holding them.

It is not true, however. Obama’s task force made it clear that other than 17 Chinese Uighur detainees, most of whom have since been released from Guantánamo, “no detainees were approved for ‘release’ during the course” of its review. Instead, the task force “approved for transfer” 126 detainees “subject to security measures.” Dozens of the detainees “approved for transfer” have since left Cuba, but 86 of them remain in detention.

The task force did not “clear” these men of any wrongdoing, nor does the Obama administration think transferring them out of Guantánamo is a risk-free endeavor.

“There were considerable variations among the detainees approved for transfer,” the task force wrote in its final report. “For a small handful of these detainees, there was scant evidence of any involvement with terrorist groups or hostilities against Coalition forces in Afghanistan.” However, “for most of the detainees approved for transfer, there were varying degrees of evidence indicating that they were low-level foreign fighters affiliated with al-Qaida or other groups operating in Afghanistan.”

The task force stressed “that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism.” On the contrary, the task force concluded that “any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country.”

And there’s the rub. Mitigating the threat posed by transferred detainees is an inherently difficult proposition. The Obama administration worked hard to transfer detainees, to both their home countries and allied nations. But 56 of the remaining 86 detainees who have been “approved for transfer” are from Yemen. The task force approved 30 of the 56 Yemeni detainees for “conditional” detention. They can only be transferred home if security conditions improve and other measures are met. That isn’t happening anytime soon.

Obama himself issued a moratorium on transfers to Yemen on Jan. 5, 2010. The move was in response to al Qaeda in the Arabian Peninsula’s attempted attack on a Detroit-bound airliner on Christmas Day 2009. The White House said this week that the moratorium “remains in place,” despite the president’s pledge “to go back at this.”

Look at the numbers again. Obama’s task force slated 80 of the current detainees for indefinite detention or prosecution. An additional 56 Yemeni detainees have been approved for transfer but are in custody because of al Qaeda’s rise in their home country and the president’s subsequent moratorium on transfers.

The bottom line is that most of the Guantánamo detainees—136 out of 166—are in U.S. custody because that is where the Obama administration thinks they belong.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.