The transfer of five “high risk” Guantanamo detainees to Qatar over the weekend — members of the Taliban who the U.S. government had branded “forever detainees” — has lead one human rights organization to question why the Obama administration has not acted to transfer dozens of other detainees who have been cleared for release for many years.
Cori Crider, the strategic director for Reprieve, a U.K.-based human rights charity, said Monday that the transfer of the five inmates in exchange for P.O.W. Bowe Bergdahl, a U.S. Army soldier, underscores that President Obama can move quickly to shutter Guantanamo if he has the political will to act.
“Many of these are being force-fed daily in a disgusting manner because they have been cleared so long they believe they will die in Gitmo,” Crider said. “Yet they could leave tomorrow with a stroke of Obama’s pen. Let’s hope this deal is a sign of more leadership from President Obama on letting the cleared men go home, too.”
When Congress passed the National Defense Authorization Act (NDAA) last December lawmakers gave Obama much more flexibility to transfer prisoners out of Guantanamo than they had in previous versions of the spending bill. The bill calls on the Secretary of Defense to notify Congress 30 days in advance of any transfer and outline the steps the administration has taken to ensure the detainee is not engaging in terrorist activities against the United States.
But Obama still issued a signing statement with the legislation that said Congress did not go far enough:
For the past several years, the Congress has enacted unwarranted and burdensome restrictions that have impeded my ability to transfer detainees from Guantanamo. Earlier this year I again called upon the Congress to lift these restrictions and, in this bill, the Congress has taken a positive step in that direction. Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees. Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy. Section 1035 nevertheless represents an improvement over current law and is a welcome step toward closing the facility.
It appears that Obama may have acted on the authority claimed from Congress in his signing statement when he turned over the five long-term detainees to the custody of Qatar.
Raha Wala, an attorney with Human Rights First, told Al Jazeera if the administration can make the argument that the five Taliban detainees are transferrable “without any significant problems under the congressionally imposed transfer restrictions” then certainly “the same argument can be made for the detainees who have already been cleared for release.”
With that said, however, it still remains unclear what authority the White House used to authorize the transfer of the former detainees and why the administration felt it did not need to abide by the law and notify Congress.
“It's a fair question,” said a lobbyist working on detainee matters who spoke to Al Jazeera on background. “I really do think the administration needs to answer that question. They should give an explanation as to why [the notification] didn't apply in this instance. It’s hard to read what it means for the future of Guantanamo and Guantanamo detainees. It’s still a more aggressive posture toward closing Guantanamo than the president has showed in the past.”
White House National Security Council spokeswoman Caitlin Hayden told Al Jazeera that Bergdahl's recovery was the "result of unique and exigent circumstances" and "due to a near-term opportunity to save his life, the Administration moved as quickly as possible and determined that the transfer should go forward notwithstanding the notice requirement of the NDAA."
Hayden also said the administration is "making progress on a number of additional promising opportunities" to hasten the closure of Guantanamo, consistent with a promise Obama made after he was sworn into office. She said 17 prisoners have been transferred since Obama gave a major counterterrorism speech in May 2013. While Hayden noted that Obama lifted the moratorium on the transfer of Yemeni detainees none have been repatriated. However, she said the administration is "now reviewing Yemeni detainees on a case-by-case basis."