Will Obama keep his promise to close Guantánamo?

Thursday, 26. November 2015
Katja Creutz
Senior Research Fellow - The Global Security Research Programme

It seems that President Obama is stuck between a rock and a hard place.

The same weekend in November 2015 when terrorist attacks hit Paris, the Pentagon quietly transferred five Yemeni inmates from Guantánamo to the United Arab Emirates. After the latest release, 107 inmates are still held at the infamous prison. The debate is intensifying concerning Obama's promise to close the prison: on the one hand terrorists have shown that they continue to pose a threat to both national and international security, on the other hand prisoners cannot be locked away endlessly in Guantánamo.

With only one year until the presidential elections, President Obama needs to act soon if he wants to be able to keep his promise. For the last few months Obama has been expected to present a concrete plan to the Congress on what measures should be taken in order to close down the military prison camp. It is suggested that such a plan needs to include different elements since the prisoners cannot all be treated in the same way. First, the process to transfer those prisoners who have been cleared to third countries or their own home state should be proceeded with. This might require legislative change as the forthcoming National Defense Authorization Act for Fiscal Year 2016 prohibits transfers to certain home states of the prisoners, such as Yemen and Somalia. The work to find third countries willing to provide a new home for the cleared prisoners should also be intensified. Second, a final settlement needs to take place regarding which prisoners should be charged with crimes. These inmates should be allowed, again after legislative change, to be brought before federal courts of the United States. They should also be able to serve their sentences in US federal prisons.

The third category of prisoners is composed of so-called ‘forever' prisoners. These inmates are arguably so dangerous that they should never be freed, and definitely not allowed to be brought on US soil under any circumstances, not even for standing trial. To this group belongs, among others, those who are claimed to be the masterminds behind the 9/11 attacks. They are the main problem to be dealt with for anybody attempting to close down Guantánamo. The American public, not to mention many politicians, would be outraged if President Obama attempted to bring them to homeland for trial. What are the alternatives then? To keep them indefinitely detained, but on US territory instead of Guantánamo? This, in turn, would not be a satisfactory solution from the perspective of human rights lawyers and activists as the detainees would continuously be situated in a legal vacuum. Clearly there are no easy solutions that would satisfy all involved parties, which might explain why the president has not yet presented his plan on Guantánamo's closure.

It is clear that President Obama will face major opposition in the Congress if and when he decides to present a comprehensive plan on how to shut down Guantánamo. As Senator McConnell has stated before the US Senate as late as in November 2015: ‘It is going to be a very tough sell'. Indeed, it seems unlikely that the Congress will support a possible comprehensive plan, which requires legislative changes allowing the transfer of prisoners to US territory. President Obama will then have to decide whether he will resort to an Executive Order in order to proceed in the matter. The debate on his competency to bypass the Congress through such a measure has already started with House Speaker Paul Ryan saying that Obama does not have authority to close Guantánamo on his own. It seems that President Obama is stuck between a rock and a hard place. If he chooses to attempt closure, he risks being remembered for trumping the Congress and his act may end up being judicially tested. If he chooses the route of inaction, he will be portrayed as not being a man of his words. Either way, Guantanamo will play a role in the political legacy left by Obama and how his presidency is perceived. It will also be influential for the overall US policy on what to do with future terrorists that are captivated as it seems that the fight against terrorism goes on.

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The column is part of a series of FIIA columns on the US presidential elections.

Texts reflect the opinions of the individual authors