President Obama recently signed the FY 2017 National Defense Authorization Act into law. Like numerous others before it, this NDAA is a densely packed, important piece of legislation, and it contains a provision extending the prohibition on spending federal funds to transfer Guantanamo Bay detainees to the United States for any reason through December 31, 2017.
Implementing this provision before the end of the calendar year was crucial. The comparable prohibition in the FY 2016 NDAA was set to expire on December 31, 2016, so failing to extend it beyond that date technically would have left the Obama with three weeks to transfer Gitmo detainees to U.S. prisons between December 31 and January 20, his last day in office. The president and his team have expressed frustration that it is now impossible for them to fulfill his 2008 campaign pledge to close detainee operations at Gitmo, which he backed with one of the very first executive orders he signed upon taking office.
The road to this point was long and uncertain. Just months after Obama’s January 2009 executive order was issued, the administration announced that it intended to prosecute 9/11 mastermind Khalid Sheikh Mohammed and other 9/11 co-conspirators in federal court in Manhattan. Bipartisan opposition to this plan was swift and sustained, and the president was forced to abandon it. The administration had also undertaken a parallel initiative to transfer other detainees to a prison facility in Standish, Michigan, but again had to drop those plans in the face of intense opposition from the local community. A similar effort to transfer detainees to a prison facility in Thomson, Illinois was also stymied when then-attorney general Eric Holder, again facing widespread objections from those with security concerns, pledged under oath before the Senate Judiciary Committee that the Thomson facility would not be used to house Gitmo detainees.
Not long after Democrats lost their lock on the House and Senate as a result of the 2010 midterm elections, Congress passed the FY 2011 NDAA, prohibiting transfers of Gitmo detainees to the United States for any reason. Congress would pass, and the President would sign into law with objection, similar bans in subsequent NDAAs and related appropriations legislation for the next several years. Over the last two years, Obama seemed to signal a willingness to defy these bans by sending delegations to survey and report on three more possible sites for domestic transfers: Fort Leavenworth, Kansas; ADX Florence, the supermax prison in Colorado that houses the most dangerous federal inmates; and the Navy Brig in South Carolina. But these possibilities, too, were met with strong opposition from state and local authorities, and they have yet to be acted upon further.
One would have to assume that a significant reason why such domestic transfers have failed to happen since Obama first looked at the Kansas, Colorado, and South Carolina sites is that U.S. military leadership has stated publicly that the military will play no part in facilitating such transfers under current law. In November of 2015, 16 Members of Congress sent a letter to the Joint Chiefs of Staff encouraging them to seek legal counsel, in light of current bans on transferring Gitmo detainees to the United States, before implementing any orders from President Obama to the contrary. The Joint Chiefs responded to that letter in February of 2016, stating that they would not take any actions that violated the transfer ban. This was a watershed moment in the debate: Since Gitmo is a military facility, it is hard to envision a transfer of detainees to the U.S. without the cooperation of the military.
The fact that Democrats and Republicans within and outside Congress held the line for the past eight years, thwarting the president’s highly misguided plans to transfer detainees stateside, is a testament to the resonance of the arguments against those plans: It remains just as true today as it was eight years ago that bringing detainees here would pose unacceptable security and legal risks for the American people, and would do nothing to abate the jihadist threat against the United States.
That said, there are two things to keep in mind until January 20th, 2017.
First, President Obama is deeply committed to his view that Gitmo has been detrimental to America’s global reputation and has maintained that “under certain circumstances” the domestic-transfer restrictions might be unconstitutional. His signing of the last NDAA of his presidency into law, and the Joint Chiefs’ previous statement regarding military participation in any such detainee transfer, severely limit his options. But it would be a mistake to consider the matter closed until President-elect Trump, who thankfully has so far adopted a very different perspective on Gitmo, assumes office.
Second, Obama has indicated that he will continue trying to transfer remaining detainees to other countries, as he has done already with several very dangerous terrorist suspects. There is less that Congress can do to stop these transfers since they fall squarely within the executive branch’s prerogative as the primary conductor of foreign policy. The recidivism rate for former Gitmo detainees released under both presidents Bush and Obama is 30 percent. So while it remains unlikely that Obama can fulfill his desire to transfer remaining detainees to the U.S. for trial before he leaves office, he can still do grave damage to America’s national security in the few weeks he has left.
With this in mind, President-elect Trump would be well-advised to minimize such damage by 1) reiterating that in his administration, Gitmo will be kept open for detainee operations involving those still there and those who may be captured or re-captured on the battlefield; and 2) announcing that countries who accept detainees for transfer between now and January 20th would be guaranteed an extremely poor start to relations with the new administration.