Defense Bill Creates Needless New Obstacles for Guantanamo Transfers

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Defense Bill Creates Needless New Obstacles for Guantanamo Transfers

Defense Bill Creates Needless New Obstacles for Guantanamo Transfers

April 29, 2015

The House Armed Services Committee is reviewing the proposed National Defense Authorization Act (NDAA) today. The legislation, which covers a range of subjects, would authorize new restrictions on the transfer of detainees from Guantanamo Bay, including the 57 individuals who have been cleared for release by all relevant government agencies. The NDAA would also impose new reporting requirements on released detainees and recidivism rates based on concerns that have been inflated by misleading statistics. These new, unwarranted restrictions are a step away from President Obama’s stated goal of closing the detention facility, which remains a threat to U.S. national security.

The Guantanamo provisions in the NDAA would hinder or prevent the transfer of even those detainees cleared for release.

The proposed NDAA would ban transferring detainees to “combat zones,” which is an inappropriate condition for transfers. As Jennifer Daskal, Professor at American University Washington College of Law, writes for Just Security, “While in theory that sounds like a sensible restriction – and one that the administration no doubt imposes on itself – the definition of ‘combat zone’ bears little resemblance to what that term ordinarily conveys…It includes, among other places, Albania, Bosnia-Herzegovina, and Jordan – all countries that have successfully resettled several Guantanamo detainees. The definition of ‘combat zone’ even encompasses Saudi Arabia, a U.S. ally known for conducting one of the most rigorous detainee reintegration programs for repatriated detainees. Such restrictions cut off a range of possible – and sensible (depending on the details) – options for detainee repatriation, making it even more difficult than it is already to transfer out even those already cleared to leave.” [Jennifer Daskal via Just Security, 4/29/15]

An expected proposal would go even further and ban all transfers. Rep. Jackie Walorski (R-IN) is expected to introduce her proposal to ban all detainee transfers for the next two years as an amendment to the NDAA. As Human Rights First points out, “The legislation would prohibit the transfer of all Guantanamo detainees, including those who have been unanimously cleared for transfer by both the Bush and Obama Administrations, as well as the Departments of Justice, Defense, State, and Homeland Security, the Office of the Director of National Intelligence, and the Joint Chiefs of Staff.” Rep. Walorski’s proposal would disregard the thorough review process and needlessly delay the release of cleared detainees. [Human Rights First, 4/15]

A better choice would be striking these transfer bans from the bill. These transfer bans are poorly-framed and simply unnecessary to ensure U.S. national security. The NDAA would be better without them. Rep. Adam Smith (D-WA) is expected to propose an amendment to remove the transfer ban provisions from the bill. “This is a sensible response – and one that all responsible Representatives should support,” writes Daskal. [Jennifer Daskal via Just Security, 4/29/15]

Conservatives have justified the transfer bans and new reporting requirements with misleading recidivism statistics. The NDAA draft includes several new reporting requirements on recidivism among released detainees. But these new requirements are responding to concerns that have been overstated by their advocates, based on misrepresentations of data compiled by the Office of the Director of National Intelligence (ODNI). The claim by some legislators that “about 30 percent” of released detainees “have reentered the fight” includes 12% who have met the minimum standard to be “suspected of reengaging” in terrorist or insurgent activities. It also includes the 63 released detainees that have been confirmed or suspected of reengaging that have died or been returned to custody – 34% of all of those confirmed or suspected. But even these statistics are misleading; they’re skewed by significantly higher recidivism rates under the George W. Bush Administration, before President Obama ordered a review of remaining detainees in 2009. In fact, under President Obama only a very small number of released detainees have reengaged in terrorist activities, while over 93% have not done so. As Cliff Sloan, former State Department Envoy for Closing Guantanamo, explained earlier this month, “The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.” [Office of the Director of National Intelligence, 9/5/14. Cliff Sloan via New York Times1/5/15]

The NDAA Guantanamo provisions are a senseless step in the wrong direction, further obstructing the necessary closure of the detention facility. Guantanamo remains a significant threat to U.S. national security, damaging relationships with allies and serving as a propaganda tool for terrorists. Sloan has written that “Americans from across the spectrum agree on closing Guantanamo. President George W. Bush called it ‘a propaganda tool for our enemies and a distraction for our allies,’” and that he has “seen firsthand the way in which Guantánamo frays and damages vitally important security relationships with countries around the world.” Earlier this year, two retired Marine Corps generals, Gen. Joseph Hoar and Gen. Charles Krulak, wrote that “Guantanamo does not serve America’s interests,” noting that “repressive governments use it to deflect criticism of their own policies by charging hypocrisy” and “violent extremists use it as a recruiting tool.” The provisions in the NDAA will make it more difficult to close the detention facility, prolonging this threat to the United States. [Cliff Sloan via New York Times1/5/15. Joseph Hoar and Charles Krulak, 2/5/15]


Photo Credit: Spc. Emely Nieves from the Puerto Rico Army National Guard guards her post over the Joint Task Force Guantanamo detention facility at sunrise, Jan. 7 2011. [JTF Guantanamo photo by U.S. Air Force Senior Airman Gino Reyes, 1/7/2011]

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