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There Is a Recent Silver Lining for Gitmo Policy – But It's Not What People Have Been Talking About

Matthew Waxman
Monday, December 8, 2014, 7:06 AM
The new National Defense Authorization Act (NDAA) is likely to extend the ban on any transfers of Guantanamo detainees into the United States but ease restrictions on transfers to other countries.

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The new National Defense Authorization Act (NDAA) is likely to extend the ban on any transfers of Guantanamo detainees into the United States but ease restrictions on transfers to other countries. Some commentators are hailing this as a decent compromise, containing some silver lining for the White House’s proclaimed policy of closing Guantanamo (see here and here), especially in light of new momentum on transfers – momentum this weekend symbolized by the long-anticipated transfer of a half-dozen detainees to Uruguay. The White House itself will probably shrug and portray this new set of NDAA provisions as a so-so deal, too, having secured some concessions. To call the new NDAA provisions a mildly positive step for the White House toward closing Guantanamo just reflects the dismal state of that policy and how far the goalposts of good news have moved. Congratulations: statutory law didn’t get any worse (while the President’s party still controlled a house of Congress). And congratulations: the law now allows the President to go back to the policy initiated and implemented also by the Bush Administration of transferring and releasing some detainees to third-countries or home-countries pursuant to adequate security and humane treatment assurances. Those transfers are very difficult to negotiate internally and diplomatically, and the President has appointed strong State and Defense Department envoys to work them. But even if Guantanamo numbers are declining, statutory restrictions still legally bar the President from attaining his goal, since there is no plausible pathway to closing Guantanamo that won’t involve bringing some detainees into the United States. In that respect, although a reduced population may make some issues more manageable, and could set up a future political push to reverse the ban if the President decides on a plan for closing Guantanamo and decides finally to spend significant political capital on it, the President is still legally farther from his policy goal than when he started. If there is a silver lining for the President’s desire to close Guantanamo, it’s not found in the new NDAA. Ironically, it’s that the Senate takeover puts John McCain at the helm of the Senate Armed Services Committee. President Obama’s Guantanamo policy has never recovered from his administration’s initial decision to announce Guantanamo closure unilaterally through executive order, with no plan to get congressional backing (remember, it was his Democratic allies in Congress, not just Republicans, who abandoned him on that). For all his talk of working with Congress on this problem, he has never showed a serious willingness to jointly develop a plan – one that would necessarily involve some tough concessions by both sides. But McCain had declared during his presidential campaign that he supports closing Guantanamo, and he has reportedly signaled since then that he was open to working with the Obama administration on Guantanamo (though he has also reportedly requested but never received a detailed plan from the White House). Politically, McCain could prove to be a more valuable partner in this than Carl Levin – if Obama (or his successor) really wants a partner. Don’t get me wrong: I still think Guantanamo closure during the remainder of Obama’s term is exceedingly unlikely. The greater legal flexibility to transfer many Yemeni detainees back to Yemen will be offset by conditions that seem to be deteriorating there, not getting better. Possible cooperation with McCain on this issue will be offset by presidential primary politics. And there’s so much more the President could have done on this issue in the past few years if were as serious about it as his occasional rhetoric made him sound. More likely, the White House will during the next two years define success downward, and pat itself of the back for exaggerated efforts to, perhaps something like, “put ourselves on the path to closing Guantanamo.” Indeed, if it does that, the NDAA restrictions (allowing transfers abroad but prohibiting them into the United States) are actually quite convenient: they allow him to continue the long-standing policy of reducing the population there through transfers without having to come forward with a comprehensive plan or spend the huge political capital to implement the most challenging parts.

Matthew Waxman is a law professor at Columbia Law School, where he chairs the National Security Law Program. He also previously co-chaired the Cybersecurity Center at Columbia University's Data Science Institute, and he is Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.

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