President Obama has repeatedly complained, as he did again this week, that Congress has made it all but impossible for him to carry out his four-year-old pledge to close the military prison at Guantanamo Bay, Cuba. But the commander in chief is far from helpless when it comes to the fate of the 166 men still being held there. While bipartisan congressional opposition has been staunch, the president has also taken numerous steps over the last several years that have made it more difficult to send many detainees home. Now, as some 100 prisoners there are carrying out hunger strikes in protest, it is worth examining what Obama chose to do and what he can still do on his own.
Obama has twice issued what became empty veto threats over legislation that affected his ability to move some detainees out of Guantanamo. The first was in 2012 when he signed the National Defense Authorization Act which included provisions blocking the transfer of detainees to either U.S. prisons or foreign countries. He renewed that threat over similar objections to the 2013 act, saying in a statement that such restrictions “have limited the executive’s ability to manage military operations in an ongoing armed conflict, harmed the country’s diplomatic relations with allies and counter-terrorism partners, and provided no benefit whatsoever to our national security.” But he again signed the new bill.
Though Obama issued an executive order to close Guantanamo on his second day in office, he has not named any official to oversee that effort full-time. A State Department position responsible for arranging detainee transfers has been empty since January.
There are currently 30 prisoners held at Guantanamo Bay that have been cleared for transfer for whom the process could begin. Among them are three Uighur detainees who need a country willing to let them resettle there, and 27 other, non-Yemeni detainees that await repatriation. Despite some restrictions, the National Defense Authorization Act gives authority, and has since 2012, to the president to resume prisoner transfers without congressional approval through a National Security Waiver. Under this provision, the secretary of defense can approve a transfer if he, in consultation with the secretary of state and the director of national intelligence, determines that adequate steps are being taken to “substantially mitigate” the potential risk that a former prisoner might engage in future acts of terrorism once home. Yet Obama’s national security team hasn’t granted a single waiver.
Obama imposed a moratorium in 2010 on transferring dozens of Yemeni detainees back to their home countries because of what the administration called an “unsettled” security situation. While the president and his advisers may still have concerns about al-Qaeda’s presence in Yemen, many of the detainees who could go home were cleared of having ties to that group in the first place.
While Obama’s position has always been to close the prison at Guantanamo, he has not been willing to release all of the detainees. In fact, he has approved holding as many as 47 prisoners indefinitely without charge or trial. In March 2011, he signed an executive order that would give those men a periodic review that could, in theory, eventually lead to their release. But after two years, the administration has yet to start a single review. When asked by the New York Times about it, a spokeswoman with the National Security Council said the Periodic Review Board has “not moved forward quickly enough.”
In addition, the Justice Department has routinely fought court orders to release detainees who won their habeas cases in the D.C. Circuit. In many cases, those orders were reversed on appeal, leaving detainees who have been cleared by the same administration for release behind bars at Guantanamo.