Guantanamo Closure: Why Obama’s 2009 Order Is Still on Hold

Source: Thinkstock

Source: Thinkstock

Hunger strikes are drawing legal and human rights related attention to Guantanamo Bay, but intentions to close the detention center are proving problematic. Some of the concerns had to do with those prisoners who are not deemed releasable as of yet for national security purposes. More realistically, part of the problem has to do with other national concerns and interests taking priority while the President faces some opposition and controversy on Gitmo, despite having been clear multiple times on his ethical and practical reasons for demanding its closure.

In the past, Congress has ruled against the any sort of release taking place on domestic soil, and for related reasons has voiced concerns over what would happen if prisoners were transferred to facilities such as one in Standish, Michigan, or Thomson, Illinois — a suggested solution from Obama’s national security team, according to The New York Times.

It’s been over five years since Obama signed an executive order for the closure of Guantanamo and ordered an “immediate review of all Guantanamo detentions,” and an eventual closure of the entire system. Included in the order of January, 2009, was a report to be made on detainees and how such a process could take place with consideration to Congressional concerns. The report dealt specifically with immigration laws, stating that it is unlikely that they would apply to released detainees and as such could not take advantage of relief offered to others under immigration acts. As such, concerns over transferring prisoners within the U.S.

We are not aware of any case law, statute, or constitutional provision that would require the United States to grant any Guantanamo detainee the right to remain permanently in the United States, and Congress could, moreover, eneact legislation explicitly providing that no such statutory right exists,” reads the report. It’s notable that legislation of this type has indeed been passed to make the process easier. Senator Carl Levin (D-Mich.) wrote a letter to the President in 2013 noting this, pointing out that the passed “national security waiver … provides a clear route for the transfers of detainees to third countries in appropriate cases,” and that it has made “sure the certification requirements do not constitute an effective prohibition.”

The May report on Gitmo also stated that detainees would be ineligible for asylum, and that the “executive branch could promulgate a regulation that would bar Guantanamo detainees relocated to the United States from receiving asylum,” and that Congress is equally able to do the same.

In 2009, Obama’s executive order held that, “The detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order,” a clear timeline issue based on the many detainees still being held at Guantanamo. “If any individuals covered by this order remain in detention at Guantanamo at the time of the closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility,” read the order.

According to The Washington Post, 86 of the 166 detainees are eligible for release, and many of those have been for multiple years. However, action as demanded has not been taken. Last year, President Obama reaffirmed his position at a press conference, saying that, “Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists.”

Videos of force feedings that have taken place in Guantanamo Bay have surfaced recently, adding considerable publicity to an issue that’s gone ignored for some time, despite the continuous discussion on closure. Until May of 2014, the videos existence had been denied. They are relevant both to the overall conditions of Guantanamo and to continued efforts for its removal, and are more directly related to the Columbia U.S. District Court case. The case has the plaintiff, Abi Wa’El (Jihad) Dhiab, petitioning for an injunction against force feedings and forcible cell extractions.

Initial probes for the video were answer in an email saying that, “DoD (Department of Defense) informs us that, as a matter of policy, the[y] do not record enternal feedings.” Further questioning asked more specifically about past policy and practice revealed the existence of previous force feeding footage for Mr. Dhiab. The New York Times reports that the court filing placed on Tuesday asks that there be an emergency order preventing the military from destroying said videotapes — a concern stemming from past destruction of water boarding tapes prior to viewing. The footage, and the issue of forced feeding is particularly vital because of the widespread hunger strikes occurring at Gitmo; over 100 of those incarcerated are taking part.

A judge has since given his lawyers permission to view the footage, but one attorney, Jon Eisenberg, told The Guardian that there are some delays in the footage as it’s in an old format and has to be digitized. “Pretend it’s 1955, that’s where the technology is,” he told The Guardian. “For all I know, there’s 8-tracks.” In total, there’s probably about eight hours of footage, and it seems likely that the trial will bring both publicity and a renewed pressure for presidential action and follow through on the promise of closing Guantanamo.

More From Wall St. Cheat Sheet:

Follow Anthea Mitchell on Twitter @AntheaWSCS