US: Act on Pledge to Close Guantanamo

US President Barack Obama should ramp up efforts to prosecute in federal court or otherwise return and resettle detainees at the military detention facility at Guantanamo Bay, now entering its tenth year, Human Rights Watch said today. Congressional obstacles to closing Guantanamo should invigorate, not dampen, Obama administration efforts to ensure US compliance with international law, Human Rights Watch said.

"Closing Guantanamo is as essential today as it was when President Obama took office in 2009," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "But Obama can't keep hoping that a political consensus will form and Congress will make it easy - he has to act to make it happen."

The US first began bringing foreign prisoners to the detention facility at Guantanamo Bay on January 11, 2002. Nine years later, despite a promise by President Obama to close the facility by January 2010, 173 detainees remain. The administration has recently acknowledged that Guantanamo will stay open for the foreseeable future.

Since the Bush presidency, Human Rights Watch has called for the closure of Guantanamo and the treatment of foreign terrorism suspects in accordance with US obligations under international law. The Obama administration, while departing from its predecessor by committing to closing the facility, has made missteps and endured setbacks that keep Guantanamo a blight on the US' human rights record. These include failing to end the practice of indefinite detention without trial of terrorism suspects; continuing to use military commissions to prosecute terrorism suspects instead of US federal courts; making insufficient efforts to repatriate safely or resettle detainees; and inadequately responding to overcome obstacles from Congress to prevent Guantanamo's closure.

"Obama still has the authority he needs to bring Guantanamo detainees to justice in US courts or to send them home," said Prasow. "If he truly believes that Guantanamo is a scar on America's reputation, he should assert his authority now."

Key issues in the Obama administration's efforts to close Guantanamo are addressed below.

Indefinite Detention in the US
On January 22, 2009, one of President Obama's first acts was to sign an executive order to close Guantanamo within one year. While the order seemed to turn a page on the abusive counterterrorism policies of the previous administration, the failure of the Obama administration to even develop a plan for Guantanamo's closure, let alone meet the deadline, was a major setback for ensuring respect for human rights.

The first sign that Obama would not meet his self-imposed deadline came in his May 2009 speech at the US National Archives. In describing the population at Guantanamo, Obama outlined five categories of detainees, including a set of persons "who cannot be prosecuted yet who pose a clear danger to the American people." He said his administration would work with Congress to develop a legal framework setting out the rules and procedures for the "prolonged" detention of such persons. The Guantanamo Detainee Review Task Force, created to review the status of each detainee, completed its report on January 22, 2010, and recommended that 48 of the 240 men whose cases it reviewed be held indefinitely, without charge. The report made clear that even if Guantanamo were physically closed, the lawlessness and indefinite detention without trial that the facility symbolized would be retained.

In November 2009, the administration announced its intention to purchase the Thomson Correctional Center in Illinois and to transfer detainees there from Guantanamo. Writing to Illinois legislators, the administration emphasized that the facility would not be used for detainees who would be tried in federal court or in military commissions, but instead for those who would be detained indefinitely. Thus "closing" Guantanamo really meant just moving the problem of indefinite detention to a facility on the US mainland. Congress has since taken action to prevent the purchase of Thomson, though primarily to keep Guantanamo open, rather than out of opposition to the indefinite detention regime.

In December 2010, press reports indicated that Obama would sign an executive order detailing a periodic review process for detainees the administration intends to hold indefinitely. Even if such a review process is limited to those 48 detainees identified for further prolonged detention, it would mark a formal legal authorization by the president to continue to hold people without charge.

Military Commissions

Instead of repudiating the military commissions at Guantanamo, President Obama in May 2009 announced that he would work with Congress to amend the commission rules, ultimately resulting in the Military Commissions Act of 2009. The new law made a number of improvements to the Bush-era military commissions system, creating, among other changes, important restrictions on the use of hearsay and coerced evidence.

The military commissions nonetheless still fail to meet international fair trial standards and remain vastly inferior to federal courts as a forum for trying terrorism cases. They have been marred by procedural problems, the use of evidence obtained by coercion, inconsistent application of varying rules of evidence, poor translation, and lack of public access. They are also susceptible to legal challenge for violating the prohibition on retroactive criminal charges, for applying only to non-citizens, and may ultimately be ruled unconstitutional if appeals ever reach the Supreme Court.

Despite Obama's stated intent to pursue military commissions for at least some of the 36 cases designated for prosecution by the Task Force, no new cases have been referred since he took office, and only two of the previously referred cases have been concluded. Only five cases in total have been completed at Guantanamo since 2002. The first prosecution by the Obama administration was of Ibrahim al-Qosi, a Sudanese man who worked as Osama bin Laden's cook for several years. His case resulted in a secret plea agreement that reportedly involved two more years of imprisonment. He has been detained since 2002. The prosecution of Omar Khadr - a Canadian citizen who was 15 years old when apprehended by US forces in Afghanistan - drew international criticism because the United States was the first Western nation to prosecute someone for alleged war crimes committed as a child and because the conduct with which he was charged had never before been considered a violation of the laws of war. Currently, only one detainee, Noor Uthman Muhammed, from Sudan, faces referred charges before a military commission.

Federal Court Trials
Despite President Obama's stated preference for federal court trials, only one detainee, Ahmed Ghailani, a Tanzanian national, has been transferred to the United States for prosecution. Ghailani faced a pre-existing indictment in federal court in New York for his alleged role in the bombings of the US embassies in Kenya and Tanzania in 1998. His five co-defendants were all convicted in federal court before Ghailani was even apprehended. His case was the first and only one to be transferred from Guantanamo to US federal court.

Attorney General Eric Holder announced in November 2009 that the cases of the five men accused of plotting the September 11, 2001 attacks on the United States would also be transferred from Guantanamo to US federal court in New York. However, following public pronouncements by local officials claiming high costs to secure the trial site, the administration announced it would reconsider the trial venue. To date, the Obama administration has still not announced where, or even if, the 9/11 co-accused will be prosecuted.

After more than a year with no decision on a trial venue, Congress in late 2010 imposed funding restrictions, under the National Defense Authorization Act (NDAA) discussed below, that may make it even more difficult to transfer Guantanamo detainees to federal court. While Congress debated these restrictions, Holder vigorously and publically opposed them. His opposition however was undermined by Obama's failure to make any public statement of his own. Obama did issue a signing statement after the bill passed, when he signed it into law, vowing to work to repeal the restrictions and to "mitigate their effects." He still has the power to use funds from other sources than those appropriated under the act to bring the detainees to the US for trial. However, it remains to be seen whether he will make the politically difficult choice to do so and move forward on closing the detention facility that for nine years has been a black mark on the US' human rights record.

Repatriation and Resettlement
As early as September 2002, the Bush administration began transferring detainees out of Guantanamo to their home countries. Eventually 532 detainees were transferred out of Guantanamo during the Bush presidency. Since Obama took office in January 2009, 67 detainees have been transferred home or to third countries. The Bush administration repatriated several detainees to countries where they faced torture or other ill-treatment, such as Russia and Tunisia, in violation of the Convention Against Torture, which United States has ratified. In an effort to avoid unlawful returns, the Obama administration appointed a special envoy for the closure of Guantanamo, Ambassador Daniel Fried, who has been successful at convincing other countries to resettle Guantanamo detainees even in the face of a US ban on resettling them in the United States. While the administration has made a significant commitment to resettling detainees who cannot be repatriated, it missed an important opportunity to resettle several Uighur detainees -Muslims from China who had taken no action against the US. A Uighur community in the United States was eager to receive them. Obama's failure to take early, decisive action on resettlement facilitated congressional transfer restrictions that continue to hinder the administration's efforts to close the detention facility.

During the Obama administration two detainees have been returned to Algeria against their will without being provided an opportunity to contest their repatriation. According to the Convention against Torture, which the US ratified in 1994, no one can be sent to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other ill-treatment. The Committee against Torture, the international expert body that monitors compliance with the Convention against Torture, said in 2006 that the United States "should always ensure that suspects have the possibility to challenge decisions of refoulement [return]."

The two men - Aziz Abdul Naji and Saeed Farhi bin Mohammed - had expressed fear of government ill-treatment if they were repatriated. US officials claim that Algeria's human rights record has improved significantly over the past decade, and asserted that the Algerian government provided so-called "diplomatic assurances" - promises to treat returned detainees humanely. Human Rights Watch's research has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment. Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links.

Of the 173 detainees currently at Guantanamo, the Task Force has cleared 59 for release. Of these, 16 are slated for resettlement to third countries, but Ambassador Fried's office has not been able to place them because, among other things, US allies that might accept them are not convinced that Obama is serious about his commitment to close Guantanamo.

An additional 30 detainees from Yemen have been cleared for release, but they continue to be detained in Guantanamo because the administration imposed a moratorium on transfers to Yemen following the Christmas Day 2009 attempted bombing of an airliner. The man accused in the plot allegedly received training in Yemen. In October 2010, another plot was uncovered that involved sending bombs via cargo planes from Yemen to addresses in the United States. The administration has made exceptions to the moratorium to comply with court orders, yet 57 of the remaining Guantanamo detainees are from Yemen.

Congressional Action
In 2009, Congress enacted a series of funding restrictions that prohibited the transfer of detainees from Guantanamo to the US. These restrictions made an exception for those being transferred for prosecution. Only one detainee, Ahmed Ghailani, was transferred to face trial in federal court. In November 2009 he was convicted of conspiracy to destroy government property and now faces a sentence of 20 years to life.

In late 2010 however, Congress passed even more strict funding prohibitions affecting the administration's Guantanamo policies. The NDAA, passed by Congress during its 2010 "lame duck" session, barred the use of Defense Department funds for the transfer of detainees currently held at Guantanamo to the US even for prosecution.

In signing the bill, Obama attached a statement expressing strong opposition to the hurdles imposed by Congress. Although he did not expressly state an intention to proceed with transferring detainees out of Guantanamo he noted that the bill's restrictions only apply to funds appropriated by the act, that prosecuting terrorism suspects in federal courts is "a powerful tool" for protecting national security, and that "[a]ny attempt to deprive the executive branch of that tool" undermines counterterrorism efforts. Since the legislation applies only to funds allocated to the Defense Department, other funds, such as those from the Department of Justice or State, for example, can still be used to transfer detainees to the US or to other countries.

The NDAA also bars the use of Defense Department funds for the purchase of the Thomson Correctional facility in Illinois, where the administration intended to transfer dozens of detainees. It also contains new rules requiring that, prior to transferring a detainee even to his home country, the secretary of defense must certify certain factors exist related to that country's ability to monitor and control the detainee and its past experience with terrorism. As a result, detainees who have already been cleared for release, some of whom have been held for more than eight years, may continue to be held indefinitely without trial in violation of US obligations under international law.

The new rules also restrict the use of Defense Department funds for the transfer of a detainee to a country with cases of "confirmed recidivism," which is not defined. While government reports claim confirmed recidivism rates among released Guantanamo detainees as high as 13 percent, these reports have been discredited by academics and experts who have analyzed the figures and cross-referenced them with publicly available information. The US government has never released a list of names of alleged recidivists or details of their alleged conduct. While there are cases of former detainees engaging in violent acts, an attempt by Congress to bar the release of detainees cleared for transfer by the administration is overbroad, would prevent the US from meeting its international legal obligations, and would harm the administration's global counterterrorism efforts by deterring international cooperation. Since the ban only applies to Defense Department funds, the administration retains the ability to repatriate and resettle detainees even to countries that have experienced recidivism, using other government funds.