Obama’s Endgame for Military Detention at Guantanamo

—by Kyle Tucker

Source: President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23, 2016), https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prison-guantanamo-bay.

Abstract:

President Obama announced that a plan was submitted to Congress to close down the detention facility in Guantanamo Bay, Cuba. The plan seeks to transfer some of the detainees to foreign countries and create a facility in the United States for those detained in the future.

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On February 23, 2016, President Obama once again spoke of a plan to shut down the facility at Guantanamo Bay and relocate those detained there. The President has similarly tried to introduce a plan to close this facility in the past, but his efforts were opposed by Congress. Previously, Congress responded by imposing narrow restrictions on appropriations to block any executive attempt to shut the facility down. However, it is the belief of President Obama that America’s ongoing experience with the facility at Guantanamo has reached a turning point. Not only does the President believe the facility no longer adequately represents core American ideals, such as strict adherence to the rule of law and human rights, but he also is of the opinion that the facility undercuts the national security and counterterrorism efforts of the United States.

Even though this issue has divided many along partisan lines, both President George W. Bush and Obama were still able to influence the current nature of the facility at Guantanamo. For example, in his speech, President Obama emphasized that around 500 transfers from the facility to other countries occurred throughout the Bush Administration, and that he has been able to transfer 147 additional detainees. As a product of this cross-administration trend to transfer those detained at Guantanamo, 91 detainees are all who remain in the facility.

To continue this declining trend, the Department of Defense, working alongside the Office of Management and Budget, produced and submitted to Congress a four-part plan on behalf of the Obama Administration. First, the plan states that 35 detainees, whose transfers were already approved, will be transferred to certain countries for subsequent monitoring. With these transfers, the federal government will monitor them to ensure that the foreign countries have proper security measures in place. Second, the review process in place to determine if an individual’s detention is still necessary to national security will be accelerated for all of the remaining detainees. If detention is no longer required for an individual after the review board’s decision, the plan may allow that individual to be transferred to another country.

Third, the legal mechanisms previously in place will continue to be used for those detained under the law of war. For example, continued implementation of the military commissions process is one method to be utilized with the remaining detainees. However, the President’s plan seeks to make further changes to this process because of its cost and duration in individual cases. Furthermore, even though military commissions will continue to be an option for those detained on the battlefield, President Obama stated that the best route in the future for those detained outside of the battlefield would be to utilize Article III courts. Lastly, the plan focuses on finding a suitable location in the United States to hold detainees. The facility will house those to be tried by military commissions, those who cannot be transferred to another country, or those determined to be a significant threat to national security. Since the President will work alongside Congress to find a particular facility in the United States, the plan did not name a specific location.

Just like any proposal, especially one that has produced a strong partisan divide, its potential effect on the future of American national security is unknown and unpredictable. Any plan President Obama comes up with is conditioned upon the approval of Congress to cut the check and make his plan a reality. Regardless of its ultimate outcome, the legal issues arising from the President’s plan will produce a debate with the potential to reshape the future of American national security.

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