Momentum toward closing the Guantanamo detention facility continues to build. Last night, in a vote of 84-15, the Senate passed the annual defense authorization bill, which for the first time includes provisions intended to facilitate, rather than obstruct, that goal.
The vote culminates a critical seven month stretch that saw the President publicly, and repeatedly, recommit to closing Guantanamo; the appointment of special envoys at the State and Defense Departments charged with that task; and the initiation of long-overdue Periodic Review Boards that have begun the process of deciding whether detainees the Obama administration has slated for long-term detention without trial might in fact not pose a threat to U.S. security, and so should be transferred out. These are significant steps toward closure.
Much credit goes to Senator Levin (D-MI), who shepherded through the Senate Armed Services Committee (SASC) markup a package of reforms to current law designed to pare down the detainee population, and to ensure that detainees receive adequate care while the facility remains open. That package included a streamlined foreign transfer process – to replace the cumbersome and needlessly complex certification and waiver regime that has impeded many transfers to date – and exceptions to the categorical ban on transfers to the U.S.; one for detention and trial and the other for emergency medical care that cannot be provided on base.
A bipartisan majority of the Senate rejected an attempt by Senator Kelly Ayotte (R-NH) to strip out the improved Guantanamo transfer provisions and to impose an absolute ban on any transfer to Yemen (a result that would have made closure impossible given that more than half of the remaining 160 detainees are Yemeni). Unfortunately, the reform package didn’t survive the next step in the process fully intact. Leaders of the Senate and House Armed Services Committees negotiated a compromise bill, behind closed doors, that dropped the U.S. transfer provisions and tweaked the foreign transfer provision to make it slightly (but probably not meaningfully) less impactful.
Losing the medical transfer provision is a blow. According to two civilian doctors who have spent an enormous amount of time examining detainees and their records, it’s becoming increasingly clear that Guantanamo is not equipped to deal with complex health problems that some detainees have already presented and that many more are sure to present as the population continues to age. That message was reiterated during a recent conference TCP co-sponsored on medical care and medical ethics at Guantanamo. Prominent physicians expressed serious concerns about the type and quality of care detainees are receiving. Hopefully this year’s debate signals the opening of a more reasonable political space to address this issue going forward, which Congress can and should take back up during next year’s NDAA.
But that is not to downplay the importance of last night’s political victory. It further empowers the Obama administration to take the steps necessary to fulfill the President’s pledge of closing Guantanamo, and places the onus squarely on it to do so without delay.
 In the SASC passed bill, detainees who have been tried and acquitted, or who have been convicted but have completed serving a sentence, were one of three categories of detainees exempt from the revised foreign transfer determination the Defense Secretary must otherwise make. In other words, the Defense Secretary would have complete discretion to transfer any such detainees. The negotiated compromise removed that exemption and instead made an acquittal or served sentence an additional factor that the Defense Secretary must consider for any foreign transfer.
The views expressed in this blog post are not necessarily those of TCP, its committees, or boards.