Guantanamo’s Last Year

9
1 Center for American Progress |  Guantanamo’s Last Year Guantanamo’s Last Y ear By Ken Gude January 26, 2016  Wih one year lef in his adminisra ion, Presid en Bara ck Obama r emains commited o closing he prison a Guananamo Ba y during his ime in oce. Congress has pro- hibied, a leas or now, one aspec o he presidens preerred pahway o close he prisonranserring some deainees ino he Unied Sa es or rial or coninued law o  war deen ion. 1  Much o his debae has ocused on he quesion o wheher Presiden Obama will use execuive acion o override he congressional ran ser ban. 2  Doing so  would be impr acical and exrem ely unwise. Te O bama adminisraion should s ae publicly ha i w ill no use execuive acion o bring large numbers o Guananamo deainees ino he Unied Saes in deance o congressional saue. A beter sraegy  would be o pursue alern aive opions or closing Guananamo ha, even given curren sauory consrains, rem ain enirely in he conrol o he execuive branch.  Amid disappoinmen a he ailure o close Guan anamo , i is easy o org e ha Presiden Obama originally believed i was easible o ideni y , caegorize, prosecue , and ranser all 242 deainees in jus one yearhe same amou n o ime he has lef or he remaining 91 deainees. 3  Whi le congressional resisa nce is a new obsacle no pres- en a he ime o Presiden Obama’ s original pledge, moving he majoriy o deainees ou o Guananamo is now mosly abou he implemena ion o polici es and decisions already made, a much more manageable challenge han he one ha Obama aced in 2009. I ha goal is o be achieved, however, Presiden Obama mus command a greaer level o urgency hroughou his adminisraion and especially a he Penag on. Te risk is no simply a ailure ha becomes a sain on he presiden’s legacy; raher , he much more serious risk is ha he nex adminisraion could resu me sending deainees o Guananamo, which is on he w ish lis o many conservaives. Te later would do irreparable harm o American naional securiyand be a colossal  wase o money . Ho lding a deainee a Gu anana mo now coss $4 million per year per deainee, compared wih less han $100,000 per inmae in he highes securiy prison in he Unied Saes. 4  And while i is air o say ha he salience o Guananamo as a recrui- ing ool or erroris groups has aded during he Obama adminisraion’s eors o close i, i is no gone. Hosages held by he Islamic Sae o Iraq and al-Sham, or ISIS, are no dressed in Guananamo-like orange jumpsuis by acciden. And i new deainees were o  be sen o Guanan amo by he nex a dminisr aion, he prison w ould r oar b ack o promi- nence in erroris propaganda and be an enormous sel-iniced wound on he counry.

Transcript of Guantanamo’s Last Year

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1 Center for American Progress | Guantanamorsquos Last Year

Guantanamorsquos Last Year

By Ken Gude January 26 2016

Wih one year lef in his adminisraion Presiden Barack Obama remains commited

o closing he prison a Guananamo Bay during his ime in office Congress has pro-

hibied a leas or now one aspec o he presidenrsquos preerred pahway o close he

prison991252ranserring some deainees ino he Unied Saes or rial or coninued law o

war deenion1 Much o his debae has ocused on he quesion o wheher Presiden

Obama will use execuive acion o override he congressional ranser ban2

Doing so would be impracical and exremely unwise Te Obama adminisraion should sae

publicly ha i will no use execuive acion o bring large numbers o Guananamo

deainees ino he Unied Saes in defiance o congressional saue A beter sraegy

would be o pursue alernaive opions or closing Guananamo ha even given curren

sauory consrains remain enirely in he conrol o he execuive branch

Amid disappoinmen a he ailure o close Guananamo i is easy o orge ha

Presiden Obama originally believed i was easible o ideniy caegorize prosecue

and ranser all 242 deainees in jus one year991252he same amoun o ime he has lef or

he remaining 91 deainees3

While congressional resisance is a new obsacle no pres-en a he ime o Presiden Obamarsquos original pledge moving he majoriy o deainees

ou o Guananamo is now mosly abou he implemenaion o policies and decisions

already made a much more manageable challenge han he one ha Obama aced in

2009 I ha goal is o be achieved however Presiden Obama mus command a greaer

level o urgency hroughou his adminisraion and especially a he Penagon Te risk

is no simply a ailure ha becomes a sain on he presidenrsquos legacy raher he much

more serious risk is ha he nex adminisraion could resume sending deainees o

Guananamo which is on he wish lis o many conservaives

Te later would do irreparable harm o American naional securiy991252and be a colossal

wase o money Holding a deainee a Guananamo now coss $4 million per year per

deainee compared wih less han $100000 per inmae in he highes securiy prison in

he Unied Saes4 And while i is air o say ha he salience o Guananamo as a recrui-

ing ool or erroris groups has aded during he Obama adminisraionrsquos effors o close

i i is no gone Hosages held by he Islamic Sae o Iraq and al-Sham or ISIS are no

dressed in Guananamo-like orange jumpsuis by acciden And i new deainees were o

be sen o Guananamo by he nex adminisraion he prison would roar back o promi-

nence in erroris propaganda and be an enormous sel-infliced wound on he counry

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2 Center for American Progress | Guantanamorsquos Last Year

We canno afford o risk his possibiliy Guananamo mus be closed during he Obama

adminisraion Tis can be achieved by compleing he ollowing seps

bull Hold Periodic Review Board hearings or all eligible deainees by July 1 2016

bull Accelerae ransers o hose deainees designaed or ranser or release

bull Order he Deparmen o Jusice o review deainee cases or prosecuion and poen-

ial plea bargain in ederal courbull Pursue agreemens wih counries o prosecue under heir laws any Guananamo

deainees accused o serious crimes

bull Engage he Aghan governmen o seek an agreemen o ranser back o Aghan cusody

any remaining law o war deainees capured in connecion wih he war in Aghanisan

Some o hese opions may no represen he bes or preerred mehod or he Obama

adminisraion o close Guananamo bu his is a easible and realisic pah o close he

prison in one year Some o hese choices will be difficul bu when measured agains

he possibiliy ha Guananamo could be back in he business o acceping new deain-

ees in 2017 hose difficulies should no be disqualiying A reinvigoraed effor romhe Obama adminisraion is urgenly needed o make 2016 Guananamorsquos las year

Current Guantanamo detainee population

Guananamo held 242 deainees when Presiden Obama ook office on January 20

2009 Te ineragency ask orce ha he se up as par o he process o close he prison

specifically reviewed each deaineersquos case in 2009 Ta ask orce caegorized he

Guananamo deainee populaion ino hree broad caegories Firs were he deainees

who could be ranserred ou o Guananamo and ou o US cusody991252hose who had been cleared by he Bush adminisraion bu were awaiing arrangemens wih receiving

counries Nex were deainees who were slaed or prosecuion in eiher ederal crimi-

nal cour or in a miliary commission And hird were deainees who were o be held in

accordance wih he law o war bu no prosecued5

As o now here are 91 deainees remaining a Guananamo O hose 91 33 have been

cleared or ranser 22 are slaed or prosecuion bu no charges have ye been filed

seven are currenly acing rial by miliary commission 26 are being held in law o war

deenion wih no public plans or prosecuion and hree who were conviced by a

miliary commission are being held pursuan o heir senences6

Hold Periodic Review Board hearings

Presiden Obama esablished he Periodic Review Boards or PRBs by execuive order in

March 20117 Te PRBs were asked wih making an ongoing assessmen o he necessiy

o coninued deenion or hose Guananamo deainees who were in he law o war or

prosecuion caegories bu had no been charged Tese reviews only examine wheher

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3 Center for American Progress | Guantanamorsquos Last Year

coninued deenion under he law o war is warraned or a paricular deainee and are

no designed o make recommendaions abou he poenial viabiliy o prosecuion eiher

in ederal cours or miliary commissions Te execuive order called or each deainee

o have a PRB case review wihin one year and hen a leas one subsequen review every

hree years hereafer As originally conemplaed each Guananamo deainee would have

had heir case reviewed or possible recaegorizaion and clearance or ranser a leas

wice by now Bu only 19 cases have been compleed and seven more are pending8

Te slow pace o he PRB process has been among he mos inexplicable aspecs o

he Obama adminisraionrsquos effors o close Guananamo Te PRB process is enirely

wihin he conrol o he execuive branch Te process is run by he Deparmen o

Deense and consiss o a review panel comprised o represenaives o he deparmens

o Deense Jusice Homeland Securiy and Sae he Office o he Direcor o Naional

Inelligence and he Join Chies o Saff And i has produced resuls 13 o he 19 hear-

ings held o dae resuled in approval o ranser and hree o he six applicaions ha

were iniially rejeced were approved on a subsequen review In all 16 o he 19 decided

cases deermined ha he deainee could be saely ranserred ou o Guananamo9

Presiden Obama should direc he secreary o deense o make necessary provisions

o ensure ha all eligible Guananamo deainees have a PRB hearing by July 1 2016

I is necessary o allow approximaely six monhs beore he end o he Obama admin-

israion in order o have enough ime beore Presiden Obama leaves office o reach a

resoluion in hese cases and arrange ransers or any deainees cleared by he PRBs O

he remaining 91 deainees 33 have already been cleared or ranser and do no require

a PRB en deainees who have eiher already been conviced in or are acing miliary

commission rials should no be prioriized or PRBs O he remaining 48 7 deainees

are awaiing he final decision in heir PRBs and 3 have already had a PRB hearing haresuled in recommended coninued law o war deenion10

Ta leaves 38 deainees Conducing a PRB or each o hem by he July 1 deadline

clearly would be a massive increase in he rae o hearings o dae bu i should no be

an insurmounable ask or an adminisraion ha insiss ha i is commited o closing

Guananamo during Presiden Obamarsquos erm in office ldquoor die ryingrdquo11 As o now only our

more PRBs are scheduled991252and only one is scheduled in he enire monh o February

Accelerate foreign transfers

Te overriding concern going ino he mos recen congressional debae abou

Guananamo provisions in he 2016 Naional Deense Auhorizaion Ac or NDAA was

ha he now Republican-conrolled Congress would enac more severe ranser resric-

ions han i had in 2014 Tis would have made i impossible o move deainees ou o

Guananamo Several Republican senaors inroduced legislaion early in 2015 ha was

inended o do jus ha12 And early versions o he fiscal year 2016 NDAA did include

language ha would have required he secreary o deense o ldquoensure hardquo any counry

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4 Center for American Progress | Guantanamorsquos Last Year

receiving a Guananamo deainee preven ha deainee rom hreaening he Unied

Saes or engaging in erroris aciviy13 Ta sandard was deemed virually impossible

o mee when i was in effec beween 2011 and 2014 and was he primary cause o he

virual shudown o ransers during ha period14

In he final 2016 NDAA enaced in December however he oreign ranser provi-

sions were modified o require only cerificaion ha receiving counries ldquosubsaniallymiigaerdquo any hrea posed by Guananamo deainees15 Tus he FY 2016 bill basically

preserved he FY 2015 saus quo on condiions on ransers991252alhough i added abso-

lue ranser bans or a ew specific counries Te Obama adminisraion has already

ranserred 16 deainees under hese new requiremens

Tose ransers will be welcome bu here would sill be 33 deainees already cleared

or ranser who were sill in deenion and many more likely added o ha caegory

hrough he PRB process We have seen burss o ranser aciviy in he pas such as

he 27 deainees moved ou o Guananamo in 10 weeks rom November 2014 hrough

January 201516

Bu only 13 more ransers ollowed ha spike in he nex 11 monhso 201517 I here is any hope o closing Guananamo beore Presiden Obama leaves

office he pace o ransers expeced his monh mus coninue hroughou he year

Instruct the Depar tment of Justice to review potential criminal

charges against the uncleared detainees as soon as possible

Te congressional ban on ransers o Guananamo deainees o he Unied Saes has

cu off he mos effecive venue o prosecue suspeced erroriss Foreign erroris

suspecs capured overseas have been brough o he Unied Saes or rial wih relaiverequency hroughou he Obama adminisraion wih none o he conroversy associ-

aed wih Guananamo deainees wo recen high-profile examples are he convicion

o Osama bin Ladenrsquos son-in-law in New York and he ongoing prosecuion in Virginia

o he alleged ringleader o he Benghazi atack18

Te one ormer Guananamo deainee brough o rial in a ederal cour Ahmed

Ghailani was conviced and is now serving a lie senence in a US prison or his role in

he 1998 Eas Arican Embassy bombings19 Bu no oher deainees have been brough

o rial since he 2010 congressional ban Te Obama adminisraion should insruc he

Deparmen o Jusice o immediaely review any poenial criminal charges which could

be brough agains Guananamo deainees no currenly designaed or ranser eiher by

he 2010 ask orce deerminaion or a PRB

Bringing such charges in ederal cour is a much beter pah o poenially overcome he

US ranser ban han doing so by unilaeral execuive acion Once charges are filed he

governmen could ask he judge o order he deendan o be brough ino he Unied

Saes o ace he charges agains him Te indiced Guananamo deainee would be eni-

led o agree or objec o such a ranser Te ederal judge would have o decide on he

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5 Center for American Progress | Guantanamorsquos Last Year

lawulness o he ranser ban in a specific case where he governmen wans o prosecue

a deendan in US cusody who could oherwise no be prosecued and would have o

be released a he end o he conflic consisen wih he law o war

Pursue agreement with affected countries for other prosecutions

Seeking judicial acion o bring Guananamo deainees ino he Unied Saes o sand

rial migh no succeed In preparaion or ha possibiliy he Obama adminisraion

should also immediaely begin negoiaions on he possibiliy o ranserring some

Guananamo deainees o sand rial in oher counries Te mos likely candidae would

be Riduan Isamuddin beter known as Hambali He is an Indonesian associaed wih

boh Jamaa Islamiyya and Al Qaeda and is believed o be responsible or a series o

deadly bombings in Souheas Asia including he 2002 Bali bombing ha kil led more

han 200 people including 9 Americans20

I would be preerable o course or American jusice o be rendered on he murdero nine Americans Bu he US ranser ban may preven a rial in a US cour and he

Guananamo miliary commissions are so hopelessly bogged down in he cases hey are

already handling ha expecing anoher rial in ha orum may be oolish

Bu i Congress prevens a US rial jusice or he vicims o hese atacks need no

be denied orever Tere are a leas wo possible counries ha migh prosecue

Hambali991252Indonesia or Ausralia Indonesia is his counry o naionaliy and Bali he

locaion o he deadlies o his alleged atacks And 88 Ausralians were killed in ha

atack more han any oher naionaliy21

wo oher associaes o Hambali are also held a Guananamo Tey were capured in

Tailand in 2003 by Tai auhoriies and hen ranserred ino US cusody22 I is possible

ha hese wo also could be prosecued or heir acions in counries wih jurisdicion over

heir alleged crimes Tere are a handul o oher deainees capured ar rom he batle-

fields in Aghanisan ha also could be candidaes or hird counry prosecuion

Transfer Afghan War detainees to Afghan custody

Even i all o he opions oulined above are successul over he course o he year i is

virually cerain ha a leas some deainees will remain in law o war deenion Tese

deainees will no be candidaes or prosecuion in any orum nor or resetlemen in

oher counries hrough he radiional ranser process I he prohibiion on ranser

o he Unied Saes remains in effec he Obama adminisraion should begin negoia-

ions wih he Aghan governmen o ranser o is cusody hose Guananamo deain-

ees capured in connecion wih he Aghanisan War Doing so would be consisen

wih curren US policy in Aghanisan regarding deenion

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6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

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7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

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8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

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2 Center for American Progress | Guantanamorsquos Last Year

We canno afford o risk his possibiliy Guananamo mus be closed during he Obama

adminisraion Tis can be achieved by compleing he ollowing seps

bull Hold Periodic Review Board hearings or all eligible deainees by July 1 2016

bull Accelerae ransers o hose deainees designaed or ranser or release

bull Order he Deparmen o Jusice o review deainee cases or prosecuion and poen-

ial plea bargain in ederal courbull Pursue agreemens wih counries o prosecue under heir laws any Guananamo

deainees accused o serious crimes

bull Engage he Aghan governmen o seek an agreemen o ranser back o Aghan cusody

any remaining law o war deainees capured in connecion wih he war in Aghanisan

Some o hese opions may no represen he bes or preerred mehod or he Obama

adminisraion o close Guananamo bu his is a easible and realisic pah o close he

prison in one year Some o hese choices will be difficul bu when measured agains

he possibiliy ha Guananamo could be back in he business o acceping new deain-

ees in 2017 hose difficulies should no be disqualiying A reinvigoraed effor romhe Obama adminisraion is urgenly needed o make 2016 Guananamorsquos las year

Current Guantanamo detainee population

Guananamo held 242 deainees when Presiden Obama ook office on January 20

2009 Te ineragency ask orce ha he se up as par o he process o close he prison

specifically reviewed each deaineersquos case in 2009 Ta ask orce caegorized he

Guananamo deainee populaion ino hree broad caegories Firs were he deainees

who could be ranserred ou o Guananamo and ou o US cusody991252hose who had been cleared by he Bush adminisraion bu were awaiing arrangemens wih receiving

counries Nex were deainees who were slaed or prosecuion in eiher ederal crimi-

nal cour or in a miliary commission And hird were deainees who were o be held in

accordance wih he law o war bu no prosecued5

As o now here are 91 deainees remaining a Guananamo O hose 91 33 have been

cleared or ranser 22 are slaed or prosecuion bu no charges have ye been filed

seven are currenly acing rial by miliary commission 26 are being held in law o war

deenion wih no public plans or prosecuion and hree who were conviced by a

miliary commission are being held pursuan o heir senences6

Hold Periodic Review Board hearings

Presiden Obama esablished he Periodic Review Boards or PRBs by execuive order in

March 20117 Te PRBs were asked wih making an ongoing assessmen o he necessiy

o coninued deenion or hose Guananamo deainees who were in he law o war or

prosecuion caegories bu had no been charged Tese reviews only examine wheher

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 38

3 Center for American Progress | Guantanamorsquos Last Year

coninued deenion under he law o war is warraned or a paricular deainee and are

no designed o make recommendaions abou he poenial viabiliy o prosecuion eiher

in ederal cours or miliary commissions Te execuive order called or each deainee

o have a PRB case review wihin one year and hen a leas one subsequen review every

hree years hereafer As originally conemplaed each Guananamo deainee would have

had heir case reviewed or possible recaegorizaion and clearance or ranser a leas

wice by now Bu only 19 cases have been compleed and seven more are pending8

Te slow pace o he PRB process has been among he mos inexplicable aspecs o

he Obama adminisraionrsquos effors o close Guananamo Te PRB process is enirely

wihin he conrol o he execuive branch Te process is run by he Deparmen o

Deense and consiss o a review panel comprised o represenaives o he deparmens

o Deense Jusice Homeland Securiy and Sae he Office o he Direcor o Naional

Inelligence and he Join Chies o Saff And i has produced resuls 13 o he 19 hear-

ings held o dae resuled in approval o ranser and hree o he six applicaions ha

were iniially rejeced were approved on a subsequen review In all 16 o he 19 decided

cases deermined ha he deainee could be saely ranserred ou o Guananamo9

Presiden Obama should direc he secreary o deense o make necessary provisions

o ensure ha all eligible Guananamo deainees have a PRB hearing by July 1 2016

I is necessary o allow approximaely six monhs beore he end o he Obama admin-

israion in order o have enough ime beore Presiden Obama leaves office o reach a

resoluion in hese cases and arrange ransers or any deainees cleared by he PRBs O

he remaining 91 deainees 33 have already been cleared or ranser and do no require

a PRB en deainees who have eiher already been conviced in or are acing miliary

commission rials should no be prioriized or PRBs O he remaining 48 7 deainees

are awaiing he final decision in heir PRBs and 3 have already had a PRB hearing haresuled in recommended coninued law o war deenion10

Ta leaves 38 deainees Conducing a PRB or each o hem by he July 1 deadline

clearly would be a massive increase in he rae o hearings o dae bu i should no be

an insurmounable ask or an adminisraion ha insiss ha i is commited o closing

Guananamo during Presiden Obamarsquos erm in office ldquoor die ryingrdquo11 As o now only our

more PRBs are scheduled991252and only one is scheduled in he enire monh o February

Accelerate foreign transfers

Te overriding concern going ino he mos recen congressional debae abou

Guananamo provisions in he 2016 Naional Deense Auhorizaion Ac or NDAA was

ha he now Republican-conrolled Congress would enac more severe ranser resric-

ions han i had in 2014 Tis would have made i impossible o move deainees ou o

Guananamo Several Republican senaors inroduced legislaion early in 2015 ha was

inended o do jus ha12 And early versions o he fiscal year 2016 NDAA did include

language ha would have required he secreary o deense o ldquoensure hardquo any counry

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 48

4 Center for American Progress | Guantanamorsquos Last Year

receiving a Guananamo deainee preven ha deainee rom hreaening he Unied

Saes or engaging in erroris aciviy13 Ta sandard was deemed virually impossible

o mee when i was in effec beween 2011 and 2014 and was he primary cause o he

virual shudown o ransers during ha period14

In he final 2016 NDAA enaced in December however he oreign ranser provi-

sions were modified o require only cerificaion ha receiving counries ldquosubsaniallymiigaerdquo any hrea posed by Guananamo deainees15 Tus he FY 2016 bill basically

preserved he FY 2015 saus quo on condiions on ransers991252alhough i added abso-

lue ranser bans or a ew specific counries Te Obama adminisraion has already

ranserred 16 deainees under hese new requiremens

Tose ransers will be welcome bu here would sill be 33 deainees already cleared

or ranser who were sill in deenion and many more likely added o ha caegory

hrough he PRB process We have seen burss o ranser aciviy in he pas such as

he 27 deainees moved ou o Guananamo in 10 weeks rom November 2014 hrough

January 201516

Bu only 13 more ransers ollowed ha spike in he nex 11 monhso 201517 I here is any hope o closing Guananamo beore Presiden Obama leaves

office he pace o ransers expeced his monh mus coninue hroughou he year

Instruct the Depar tment of Justice to review potential criminal

charges against the uncleared detainees as soon as possible

Te congressional ban on ransers o Guananamo deainees o he Unied Saes has

cu off he mos effecive venue o prosecue suspeced erroriss Foreign erroris

suspecs capured overseas have been brough o he Unied Saes or rial wih relaiverequency hroughou he Obama adminisraion wih none o he conroversy associ-

aed wih Guananamo deainees wo recen high-profile examples are he convicion

o Osama bin Ladenrsquos son-in-law in New York and he ongoing prosecuion in Virginia

o he alleged ringleader o he Benghazi atack18

Te one ormer Guananamo deainee brough o rial in a ederal cour Ahmed

Ghailani was conviced and is now serving a lie senence in a US prison or his role in

he 1998 Eas Arican Embassy bombings19 Bu no oher deainees have been brough

o rial since he 2010 congressional ban Te Obama adminisraion should insruc he

Deparmen o Jusice o immediaely review any poenial criminal charges which could

be brough agains Guananamo deainees no currenly designaed or ranser eiher by

he 2010 ask orce deerminaion or a PRB

Bringing such charges in ederal cour is a much beter pah o poenially overcome he

US ranser ban han doing so by unilaeral execuive acion Once charges are filed he

governmen could ask he judge o order he deendan o be brough ino he Unied

Saes o ace he charges agains him Te indiced Guananamo deainee would be eni-

led o agree or objec o such a ranser Te ederal judge would have o decide on he

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 58

5 Center for American Progress | Guantanamorsquos Last Year

lawulness o he ranser ban in a specific case where he governmen wans o prosecue

a deendan in US cusody who could oherwise no be prosecued and would have o

be released a he end o he conflic consisen wih he law o war

Pursue agreement with affected countries for other prosecutions

Seeking judicial acion o bring Guananamo deainees ino he Unied Saes o sand

rial migh no succeed In preparaion or ha possibiliy he Obama adminisraion

should also immediaely begin negoiaions on he possibiliy o ranserring some

Guananamo deainees o sand rial in oher counries Te mos likely candidae would

be Riduan Isamuddin beter known as Hambali He is an Indonesian associaed wih

boh Jamaa Islamiyya and Al Qaeda and is believed o be responsible or a series o

deadly bombings in Souheas Asia including he 2002 Bali bombing ha kil led more

han 200 people including 9 Americans20

I would be preerable o course or American jusice o be rendered on he murdero nine Americans Bu he US ranser ban may preven a rial in a US cour and he

Guananamo miliary commissions are so hopelessly bogged down in he cases hey are

already handling ha expecing anoher rial in ha orum may be oolish

Bu i Congress prevens a US rial jusice or he vicims o hese atacks need no

be denied orever Tere are a leas wo possible counries ha migh prosecue

Hambali991252Indonesia or Ausralia Indonesia is his counry o naionaliy and Bali he

locaion o he deadlies o his alleged atacks And 88 Ausralians were killed in ha

atack more han any oher naionaliy21

wo oher associaes o Hambali are also held a Guananamo Tey were capured in

Tailand in 2003 by Tai auhoriies and hen ranserred ino US cusody22 I is possible

ha hese wo also could be prosecued or heir acions in counries wih jurisdicion over

heir alleged crimes Tere are a handul o oher deainees capured ar rom he batle-

fields in Aghanisan ha also could be candidaes or hird counry prosecuion

Transfer Afghan War detainees to Afghan custody

Even i all o he opions oulined above are successul over he course o he year i is

virually cerain ha a leas some deainees will remain in law o war deenion Tese

deainees will no be candidaes or prosecuion in any orum nor or resetlemen in

oher counries hrough he radiional ranser process I he prohibiion on ranser

o he Unied Saes remains in effec he Obama adminisraion should begin negoia-

ions wih he Aghan governmen o ranser o is cusody hose Guananamo deain-

ees capured in connecion wih he Aghanisan War Doing so would be consisen

wih curren US policy in Aghanisan regarding deenion

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 68

6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 38

3 Center for American Progress | Guantanamorsquos Last Year

coninued deenion under he law o war is warraned or a paricular deainee and are

no designed o make recommendaions abou he poenial viabiliy o prosecuion eiher

in ederal cours or miliary commissions Te execuive order called or each deainee

o have a PRB case review wihin one year and hen a leas one subsequen review every

hree years hereafer As originally conemplaed each Guananamo deainee would have

had heir case reviewed or possible recaegorizaion and clearance or ranser a leas

wice by now Bu only 19 cases have been compleed and seven more are pending8

Te slow pace o he PRB process has been among he mos inexplicable aspecs o

he Obama adminisraionrsquos effors o close Guananamo Te PRB process is enirely

wihin he conrol o he execuive branch Te process is run by he Deparmen o

Deense and consiss o a review panel comprised o represenaives o he deparmens

o Deense Jusice Homeland Securiy and Sae he Office o he Direcor o Naional

Inelligence and he Join Chies o Saff And i has produced resuls 13 o he 19 hear-

ings held o dae resuled in approval o ranser and hree o he six applicaions ha

were iniially rejeced were approved on a subsequen review In all 16 o he 19 decided

cases deermined ha he deainee could be saely ranserred ou o Guananamo9

Presiden Obama should direc he secreary o deense o make necessary provisions

o ensure ha all eligible Guananamo deainees have a PRB hearing by July 1 2016

I is necessary o allow approximaely six monhs beore he end o he Obama admin-

israion in order o have enough ime beore Presiden Obama leaves office o reach a

resoluion in hese cases and arrange ransers or any deainees cleared by he PRBs O

he remaining 91 deainees 33 have already been cleared or ranser and do no require

a PRB en deainees who have eiher already been conviced in or are acing miliary

commission rials should no be prioriized or PRBs O he remaining 48 7 deainees

are awaiing he final decision in heir PRBs and 3 have already had a PRB hearing haresuled in recommended coninued law o war deenion10

Ta leaves 38 deainees Conducing a PRB or each o hem by he July 1 deadline

clearly would be a massive increase in he rae o hearings o dae bu i should no be

an insurmounable ask or an adminisraion ha insiss ha i is commited o closing

Guananamo during Presiden Obamarsquos erm in office ldquoor die ryingrdquo11 As o now only our

more PRBs are scheduled991252and only one is scheduled in he enire monh o February

Accelerate foreign transfers

Te overriding concern going ino he mos recen congressional debae abou

Guananamo provisions in he 2016 Naional Deense Auhorizaion Ac or NDAA was

ha he now Republican-conrolled Congress would enac more severe ranser resric-

ions han i had in 2014 Tis would have made i impossible o move deainees ou o

Guananamo Several Republican senaors inroduced legislaion early in 2015 ha was

inended o do jus ha12 And early versions o he fiscal year 2016 NDAA did include

language ha would have required he secreary o deense o ldquoensure hardquo any counry

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 48

4 Center for American Progress | Guantanamorsquos Last Year

receiving a Guananamo deainee preven ha deainee rom hreaening he Unied

Saes or engaging in erroris aciviy13 Ta sandard was deemed virually impossible

o mee when i was in effec beween 2011 and 2014 and was he primary cause o he

virual shudown o ransers during ha period14

In he final 2016 NDAA enaced in December however he oreign ranser provi-

sions were modified o require only cerificaion ha receiving counries ldquosubsaniallymiigaerdquo any hrea posed by Guananamo deainees15 Tus he FY 2016 bill basically

preserved he FY 2015 saus quo on condiions on ransers991252alhough i added abso-

lue ranser bans or a ew specific counries Te Obama adminisraion has already

ranserred 16 deainees under hese new requiremens

Tose ransers will be welcome bu here would sill be 33 deainees already cleared

or ranser who were sill in deenion and many more likely added o ha caegory

hrough he PRB process We have seen burss o ranser aciviy in he pas such as

he 27 deainees moved ou o Guananamo in 10 weeks rom November 2014 hrough

January 201516

Bu only 13 more ransers ollowed ha spike in he nex 11 monhso 201517 I here is any hope o closing Guananamo beore Presiden Obama leaves

office he pace o ransers expeced his monh mus coninue hroughou he year

Instruct the Depar tment of Justice to review potential criminal

charges against the uncleared detainees as soon as possible

Te congressional ban on ransers o Guananamo deainees o he Unied Saes has

cu off he mos effecive venue o prosecue suspeced erroriss Foreign erroris

suspecs capured overseas have been brough o he Unied Saes or rial wih relaiverequency hroughou he Obama adminisraion wih none o he conroversy associ-

aed wih Guananamo deainees wo recen high-profile examples are he convicion

o Osama bin Ladenrsquos son-in-law in New York and he ongoing prosecuion in Virginia

o he alleged ringleader o he Benghazi atack18

Te one ormer Guananamo deainee brough o rial in a ederal cour Ahmed

Ghailani was conviced and is now serving a lie senence in a US prison or his role in

he 1998 Eas Arican Embassy bombings19 Bu no oher deainees have been brough

o rial since he 2010 congressional ban Te Obama adminisraion should insruc he

Deparmen o Jusice o immediaely review any poenial criminal charges which could

be brough agains Guananamo deainees no currenly designaed or ranser eiher by

he 2010 ask orce deerminaion or a PRB

Bringing such charges in ederal cour is a much beter pah o poenially overcome he

US ranser ban han doing so by unilaeral execuive acion Once charges are filed he

governmen could ask he judge o order he deendan o be brough ino he Unied

Saes o ace he charges agains him Te indiced Guananamo deainee would be eni-

led o agree or objec o such a ranser Te ederal judge would have o decide on he

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 58

5 Center for American Progress | Guantanamorsquos Last Year

lawulness o he ranser ban in a specific case where he governmen wans o prosecue

a deendan in US cusody who could oherwise no be prosecued and would have o

be released a he end o he conflic consisen wih he law o war

Pursue agreement with affected countries for other prosecutions

Seeking judicial acion o bring Guananamo deainees ino he Unied Saes o sand

rial migh no succeed In preparaion or ha possibiliy he Obama adminisraion

should also immediaely begin negoiaions on he possibiliy o ranserring some

Guananamo deainees o sand rial in oher counries Te mos likely candidae would

be Riduan Isamuddin beter known as Hambali He is an Indonesian associaed wih

boh Jamaa Islamiyya and Al Qaeda and is believed o be responsible or a series o

deadly bombings in Souheas Asia including he 2002 Bali bombing ha kil led more

han 200 people including 9 Americans20

I would be preerable o course or American jusice o be rendered on he murdero nine Americans Bu he US ranser ban may preven a rial in a US cour and he

Guananamo miliary commissions are so hopelessly bogged down in he cases hey are

already handling ha expecing anoher rial in ha orum may be oolish

Bu i Congress prevens a US rial jusice or he vicims o hese atacks need no

be denied orever Tere are a leas wo possible counries ha migh prosecue

Hambali991252Indonesia or Ausralia Indonesia is his counry o naionaliy and Bali he

locaion o he deadlies o his alleged atacks And 88 Ausralians were killed in ha

atack more han any oher naionaliy21

wo oher associaes o Hambali are also held a Guananamo Tey were capured in

Tailand in 2003 by Tai auhoriies and hen ranserred ino US cusody22 I is possible

ha hese wo also could be prosecued or heir acions in counries wih jurisdicion over

heir alleged crimes Tere are a handul o oher deainees capured ar rom he batle-

fields in Aghanisan ha also could be candidaes or hird counry prosecuion

Transfer Afghan War detainees to Afghan custody

Even i all o he opions oulined above are successul over he course o he year i is

virually cerain ha a leas some deainees will remain in law o war deenion Tese

deainees will no be candidaes or prosecuion in any orum nor or resetlemen in

oher counries hrough he radiional ranser process I he prohibiion on ranser

o he Unied Saes remains in effec he Obama adminisraion should begin negoia-

ions wih he Aghan governmen o ranser o is cusody hose Guananamo deain-

ees capured in connecion wih he Aghanisan War Doing so would be consisen

wih curren US policy in Aghanisan regarding deenion

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 68

6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 48

4 Center for American Progress | Guantanamorsquos Last Year

receiving a Guananamo deainee preven ha deainee rom hreaening he Unied

Saes or engaging in erroris aciviy13 Ta sandard was deemed virually impossible

o mee when i was in effec beween 2011 and 2014 and was he primary cause o he

virual shudown o ransers during ha period14

In he final 2016 NDAA enaced in December however he oreign ranser provi-

sions were modified o require only cerificaion ha receiving counries ldquosubsaniallymiigaerdquo any hrea posed by Guananamo deainees15 Tus he FY 2016 bill basically

preserved he FY 2015 saus quo on condiions on ransers991252alhough i added abso-

lue ranser bans or a ew specific counries Te Obama adminisraion has already

ranserred 16 deainees under hese new requiremens

Tose ransers will be welcome bu here would sill be 33 deainees already cleared

or ranser who were sill in deenion and many more likely added o ha caegory

hrough he PRB process We have seen burss o ranser aciviy in he pas such as

he 27 deainees moved ou o Guananamo in 10 weeks rom November 2014 hrough

January 201516

Bu only 13 more ransers ollowed ha spike in he nex 11 monhso 201517 I here is any hope o closing Guananamo beore Presiden Obama leaves

office he pace o ransers expeced his monh mus coninue hroughou he year

Instruct the Depar tment of Justice to review potential criminal

charges against the uncleared detainees as soon as possible

Te congressional ban on ransers o Guananamo deainees o he Unied Saes has

cu off he mos effecive venue o prosecue suspeced erroriss Foreign erroris

suspecs capured overseas have been brough o he Unied Saes or rial wih relaiverequency hroughou he Obama adminisraion wih none o he conroversy associ-

aed wih Guananamo deainees wo recen high-profile examples are he convicion

o Osama bin Ladenrsquos son-in-law in New York and he ongoing prosecuion in Virginia

o he alleged ringleader o he Benghazi atack18

Te one ormer Guananamo deainee brough o rial in a ederal cour Ahmed

Ghailani was conviced and is now serving a lie senence in a US prison or his role in

he 1998 Eas Arican Embassy bombings19 Bu no oher deainees have been brough

o rial since he 2010 congressional ban Te Obama adminisraion should insruc he

Deparmen o Jusice o immediaely review any poenial criminal charges which could

be brough agains Guananamo deainees no currenly designaed or ranser eiher by

he 2010 ask orce deerminaion or a PRB

Bringing such charges in ederal cour is a much beter pah o poenially overcome he

US ranser ban han doing so by unilaeral execuive acion Once charges are filed he

governmen could ask he judge o order he deendan o be brough ino he Unied

Saes o ace he charges agains him Te indiced Guananamo deainee would be eni-

led o agree or objec o such a ranser Te ederal judge would have o decide on he

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 58

5 Center for American Progress | Guantanamorsquos Last Year

lawulness o he ranser ban in a specific case where he governmen wans o prosecue

a deendan in US cusody who could oherwise no be prosecued and would have o

be released a he end o he conflic consisen wih he law o war

Pursue agreement with affected countries for other prosecutions

Seeking judicial acion o bring Guananamo deainees ino he Unied Saes o sand

rial migh no succeed In preparaion or ha possibiliy he Obama adminisraion

should also immediaely begin negoiaions on he possibiliy o ranserring some

Guananamo deainees o sand rial in oher counries Te mos likely candidae would

be Riduan Isamuddin beter known as Hambali He is an Indonesian associaed wih

boh Jamaa Islamiyya and Al Qaeda and is believed o be responsible or a series o

deadly bombings in Souheas Asia including he 2002 Bali bombing ha kil led more

han 200 people including 9 Americans20

I would be preerable o course or American jusice o be rendered on he murdero nine Americans Bu he US ranser ban may preven a rial in a US cour and he

Guananamo miliary commissions are so hopelessly bogged down in he cases hey are

already handling ha expecing anoher rial in ha orum may be oolish

Bu i Congress prevens a US rial jusice or he vicims o hese atacks need no

be denied orever Tere are a leas wo possible counries ha migh prosecue

Hambali991252Indonesia or Ausralia Indonesia is his counry o naionaliy and Bali he

locaion o he deadlies o his alleged atacks And 88 Ausralians were killed in ha

atack more han any oher naionaliy21

wo oher associaes o Hambali are also held a Guananamo Tey were capured in

Tailand in 2003 by Tai auhoriies and hen ranserred ino US cusody22 I is possible

ha hese wo also could be prosecued or heir acions in counries wih jurisdicion over

heir alleged crimes Tere are a handul o oher deainees capured ar rom he batle-

fields in Aghanisan ha also could be candidaes or hird counry prosecuion

Transfer Afghan War detainees to Afghan custody

Even i all o he opions oulined above are successul over he course o he year i is

virually cerain ha a leas some deainees will remain in law o war deenion Tese

deainees will no be candidaes or prosecuion in any orum nor or resetlemen in

oher counries hrough he radiional ranser process I he prohibiion on ranser

o he Unied Saes remains in effec he Obama adminisraion should begin negoia-

ions wih he Aghan governmen o ranser o is cusody hose Guananamo deain-

ees capured in connecion wih he Aghanisan War Doing so would be consisen

wih curren US policy in Aghanisan regarding deenion

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 68

6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 58

5 Center for American Progress | Guantanamorsquos Last Year

lawulness o he ranser ban in a specific case where he governmen wans o prosecue

a deendan in US cusody who could oherwise no be prosecued and would have o

be released a he end o he conflic consisen wih he law o war

Pursue agreement with affected countries for other prosecutions

Seeking judicial acion o bring Guananamo deainees ino he Unied Saes o sand

rial migh no succeed In preparaion or ha possibiliy he Obama adminisraion

should also immediaely begin negoiaions on he possibiliy o ranserring some

Guananamo deainees o sand rial in oher counries Te mos likely candidae would

be Riduan Isamuddin beter known as Hambali He is an Indonesian associaed wih

boh Jamaa Islamiyya and Al Qaeda and is believed o be responsible or a series o

deadly bombings in Souheas Asia including he 2002 Bali bombing ha kil led more

han 200 people including 9 Americans20

I would be preerable o course or American jusice o be rendered on he murdero nine Americans Bu he US ranser ban may preven a rial in a US cour and he

Guananamo miliary commissions are so hopelessly bogged down in he cases hey are

already handling ha expecing anoher rial in ha orum may be oolish

Bu i Congress prevens a US rial jusice or he vicims o hese atacks need no

be denied orever Tere are a leas wo possible counries ha migh prosecue

Hambali991252Indonesia or Ausralia Indonesia is his counry o naionaliy and Bali he

locaion o he deadlies o his alleged atacks And 88 Ausralians were killed in ha

atack more han any oher naionaliy21

wo oher associaes o Hambali are also held a Guananamo Tey were capured in

Tailand in 2003 by Tai auhoriies and hen ranserred ino US cusody22 I is possible

ha hese wo also could be prosecued or heir acions in counries wih jurisdicion over

heir alleged crimes Tere are a handul o oher deainees capured ar rom he batle-

fields in Aghanisan ha also could be candidaes or hird counry prosecuion

Transfer Afghan War detainees to Afghan custody

Even i all o he opions oulined above are successul over he course o he year i is

virually cerain ha a leas some deainees will remain in law o war deenion Tese

deainees will no be candidaes or prosecuion in any orum nor or resetlemen in

oher counries hrough he radiional ranser process I he prohibiion on ranser

o he Unied Saes remains in effec he Obama adminisraion should begin negoia-

ions wih he Aghan governmen o ranser o is cusody hose Guananamo deain-

ees capured in connecion wih he Aghanisan War Doing so would be consisen

wih curren US policy in Aghanisan regarding deenion

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 68

6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 68

6 Center for American Progress | Guantanamorsquos Last Year

While his opion has no been publicly discussed i is only he peculiariy o Guananamo

isel ha makes i seem unusual I he Bush adminisraion had no chosen o remove

hese deainees rom he ldquoA-Pakrdquo heaer in which hey were capured when Guananamo

was creaed mosly in 2002 and 2003 hen hese deainees never would have lef a

all ransers o Guananamo slowed markedly in he mid-2000s and mos individuals

deained by US orces in he A-Pak heaer were in ac kep in deenion here

In 2012 he Unied Saes enered ino a memorandum o undersanding wih he

governmen o Aghanisan o ranser conrol o all US deenion aciliies and cusody

o all US-held deainees in Aghanisan23 Non-Aghan deainees held in Aghanisan

by he Unied Saes so-called hird counry naionals became a sicking poin in he

negoiaions over he ransers o aciliies and cusody24 Tis was ulimaely resolved

wih an addiional agreemen negoiaed in 2014 as par o he US-Aghanisan Bilaeral

Securiy Agreemen25 In ha agreemen Aghanisan commited o a process o review

periodically he cases o hose deainees held in law o war deenion and make is deen-

ion regime consisen wih inernaional humaniarian law and all o Aghanisanrsquos iner-

naional obligaions ldquowih respec o humane reamen and applicable due processrdquo

Pursuan o ha agreemen all Aghan and hird counry naional deainees held by

he Unied Saes in Aghanisan were ranserred o Aghan cusody by December

2014 In essence ranserring deainees o he Aghan governmen who were capured

in connecion wih he war in Aghanisan bu held in Guananamo and who will no

be prosecued would complee he policy process begun wih he 2012 memorandum

o undersanding26

Te Obama adminisraion may have considered his opion in he pas and rejeced i

given he ofen raugh relaionship wih he previous Aghan presiden Hamid Karzaiparicularly around he issue o deenion Te Unied Saes enjoys a much sronger

working relaionship wih new Aghan Presiden Ashra Ghani And he Obama admin-

israion has increased leverage wih is Aghan counerpars afer delaying he draw-

down o US roops in Aghanisan in 2015 afer a direc appeal rom Presiden Ghani

ranserring hird counry naionals back o Aghanisan likely would generae criicism

I is vial ha any such ransers be consisen wih all obligaions under inernaional

law Tey could no proceed unless i is absoluely clear ha he deainees will no be

misreaed in Aghan cusody Bu any oher concerns mus be weighed agains he real

prospec ha i Presiden Obama ails o close Guananamo hese deainees will be

suck in Guananamo or years o come and here may very well be new deainees sen

here as well A his juncure he pahway or resolving he cases o law o war deainees

ranserred o Aghanisan is clearer han i is or any who migh be lef a Guananamo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 78

7 Center for American Progress | Guantanamorsquos Last Year

Conclusion

I is easy o be pessimisic abou he prospecs or closing Guananamo during he Obama

adminisraion Posiions have hardened on all sides seemingly insurmounable obsacles

are in he pah o closure and he debae has gone sale Wha is needed now is resh hink-

ing and new energy behind he goal o closing Guananamo One year is sill a long ime

Alernaives o he curren sandoff do exis Guananamorsquos 15h year can be is las

Ken Gude is a Senior Fellow with the National Security team at the Center for American

Progress

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo

8202019 Guantanamorsquos Last Year

httpslidepdfcomreaderfullguantanamos-last-year 88

8 Center for American Progress | Guantanamorsquos Last Year

Endnotes

1 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031 114th Cong 1st sess (January 62015) available at httpswwwgpogovfdsyspkgBILLS-114s1356enrpdfBILLS-114s1356enrpdf

2 Eli Lake and Josh Rogin ldquoPresident Not Bluffing on ClosingGuantanamordquo Tulsa World January 19 2016 availableat httpwwwtulsaworldcomhomepagelatesteli-

lake-and-josh-rogin-president-not-bluffing-on-closingarticle_2b526fc4-24a7-5dbf-ad66-73f4dc4a5ef5html

3 WJ Hennigan ldquoTransfer of 10 Prisoners Brings GuantanamoPopulation Below 100rdquo Los Angeles Times January 14 2016available at httpwwwlatimescomnationla-na-guanta-namo-bay-transfers-20160114-storyhtml

4 For the $4 million per year statistic see Andrew V PestanoldquoObama Chief of Staff Wersquore Going to Close GuantanamoBayrdquo UPI January 11 2016 available at httpwwwupicom Top_NewsUS20160111Obamas-Chief-of-Staff-Were-going-to-close-Guantanamo-Bay1021452520817 For theless than $100000 per inmate statistic see Solitary WatchldquoThe High Cost of Solitary Confinementrdquo (2011) availableat httpsolitarywatchcomwp-contentuploads201106fact-sheet-the-high-cost-of-solitary-confinementpdf

5 US Department of Justice and others Final ReportGuantanamo Review Task Force (2010) available at http

wwwjusticegovsitesdefaultfilesaglegacy20100602guantanamo-review-final-reportpdf

6 Miami Herald ldquoGuantaacutenamo By the Numbersrdquo January 142016 available at httpwwwmiamiheraldcomnewsnation-worldworldamericasguantanamoarticle2163210html

7 Office of the Press Secretary ldquoExecutive Order 13567 PeriodicReview of Individuals Detained at Guantanamo Bayrdquo Pressrelease March 7 2011 available at httpswwwwhitehousegovthe-press-office20110307executive-order-13567-pe-riodic-review-individuals-detained-guant-namo-ba

8 US Department of Defense ldquoPeriodic Review SecretariatInitial Reviewrdquo available at httpwwwprsmilReviewInfor-mationInitialReviewaspx (last accessed January 2016)

9 Ibid

10 Ibid

11 Gabrielle Levy ldquoGitmo Threat Still Hangs Over New DefenseBillrdquo US News amp World Report November 4 2015 availableat httpwwwusnewscomnewsarticles20151104gitmo-threat-still-hangs-over-new-defense-bill

12 Jeremy Herb ldquoGOP Senators Move to Keep Gitmo OpenrdquoPolitico January 13 2015 available at httpwwwpoliticocomstory201501republican-senators-guantana-mo-114223

13 National Defense Authorization Act for Fiscal Year 2016 HRept 1735 Sec 1039 114 Cong 1 sess (Congressgov2015) available at httpswwwcongressgovbill114th-congresshouse-bill1735texteh

14 Associated Press ldquoTransfers of prisoners from GuantanamoBay have all but stoppedrdquo CBS News September 30 2014available at httpwwwcbsnewscomnewstransfers-of-prisoners-from-guantanamo-bay-have-all-but-stopped

15 National Defense Authorization Act for Fiscal Year 2016 PublicLaw 114-92 Sec 1031

16 Wikipedia org ldquoTimeline of the Release and Transfer of Guan-tanamo Bay Detaineesrdquo available at httpsenwikipediaorgwikiTimeline_of_the_release_and_transfer_of_Guanta-namo_Bay_detainees (last accessed January 2016)

17 Ibid

18 For the information on Osama bin Ladenrsquos son-in-law seeBenjamin Weiser ldquoJurors Convict Abu Ghaith Bin Laden Son-in-Law in Terror Caserdquo The New York Times March 26 2014available at httpwwwnytimescom20140327nyregionbin-ladens-son-in-law-is-convicted-in-terror-trialhtml_r=0For the information on the alleged Benghazi ringleader seePaul Courson ldquoBenghazi Suspect Abu Khatallah Pleads NotGuiltyrdquo CNN October 20 2014 available at httpwwwcnncom20141020usabu-khatallah-benghazi

19 Benjamin Weiser ldquoEx-Detainee Gets Life Sentence in EmbassyBlastsrdquo The New York Times January 25 2011 available at httpwwwnytimescom20110126nyregion26ghailanihtml

20 Paul Toohey ldquoBali bombings terrorist Hambali yet toface trial after years in Guant aacutenamo Bayrdquo NewscomauNovember 28 2014 available at httpwwwnewscomauworldbali-bombings-terrorist-hambali-yet-to-face-trial-after-years-in-guantaacutenamo-baynews-story224c09c3323e947056af0068b0fec33e

21 BBC News ldquoAustralia Remembers 88 Killed in Bali BombingrdquoOctober 12 2012 available at httpwwwbbccomnewsworld-asia-19920643

22 Lee Shi-Ian ldquoMalaysian duo in Guantanamo to face tribunalrdquoAsiaOne January 23 2012 available at httpnewsasiaonecomNewsAsiaOne2BNewsMalaysiaStoryA1S-tory20120123-323490html

23 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of America

On Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo March 9 2012 available at httpmfagovafennews7671

24 BBC News ldquoAfghanistan US hands over controversial Ba-gram jailrdquo September 10 2012 available at httpwwwbbccomnewsworld-asia-19539412

25 Richard Sisk ldquoUS Military Hands Over Last 3 Prisoners inAfghanistanrdquo Militarycom December 10 2014 available athttpwwwmilitarycomdaily-news20141210us-hands-off-last-3-us-held-prisoners-in-afghanistanhtml

26 Ministry of Foreign Affairs - Islamic Republic of AfghanistanldquoMemorandum of Understanding between The IslamicRepublic of Afghanistan and the United States of AmericaOn Transfer of US Detention Facilities in Afghan Territory toAfghanistanrdquo