SOURCE ALERT: Why Hasn’t Obama Closed the Guantánamo Detention Center?

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The detention center at U.S. Naval Station Guantánamo Bay opened in January 2002 and has held 780 detainees. The center now holds 60 detainees, including many cleared for release and others deemed too dangerous to release. As President Obama’s second term in the White House nears its end, his long-ago promise to close the Guantánamo detention center remains unfulfilled. 

Christina Frohock is a professor of legal writing and the author of Small-Town GTMO, a new book that analyzes historical and legal issues in Guantánamo. 

Christina Frohock

What has President Obama done to close the detention center?

Since first campaigning for president, Obama has repeatedly promised to close the Guantánamo detention center. In his nearly eight years in office, Obama has acted on Guantánamo often through executive orders, which he can sign as head of the executive branch. Days after his first inauguration, Obama directed that the detention center be closed within one year. Later, he ordered the acquisition of an Illinois state prison as a replacement. In early 2016, Obama submitted to Congress his plan to close the detention center, but immediately faced objections from many Republicans and some Democrats in Congress. No doubt aware of the political obstacles, in the last few years Obama has focused his efforts on emptying the detention center rather than formally closing it. He has overseen the release of many detainees to their home countries or willing host countries, including Saudi Arabia, the United Arab Emirates, and Oman. Guantánamo held 242 detainees when Obama first took office; it now holds 60. 

What are the roles of the executive and the legislative branches in closing the detention center?

The president acting unilaterally can do only so much. He has signed executive orders and overseen the transfer of detainees to other countries. While the detention center remains open, the executive branch is tasked with reviewing, charging, and prosecuting detainees. Military commission trials are underway for a handful of terrorism defendants, including Khalid Shaikh Mohammad, the alleged mastermind behind the September 11th attacks, and Abd al-Rahim al-Nashiri, the alleged U.S.S. Cole bomber. Other detainees are under periodic review, to be recommended for transfer or continued law-of-war detention. The latter category includes so-called “forever prisoners”: detainees who are deemed too dangerous to release but face no criminal charges.

Congress controls public expenditures. Under the National Defense Authorization Act, it is unlawful to use funds to transfer detainees from Guantánamo to the United States. It is unlawful even to prepare for future domestic detentions, as the act prohibits the use of funds to construct or modify any U.S. facility to hold detainees currently in Guantánamo.

 Will the new president inherit the burden of Guantánamo?

Although Obama has said that he does not “want to pass this problem” of Guantánamo to the next president, that scenario is more likely every day. Pressure will mount from both sides: to continue operating the detention center and to close it.

Those who wish to maintain the detention center—including presidential candidate Donald Trump—express concern about recidivism and further terrorist activities. Those who wish to close the detention center—including presidential candidate Hillary Clinton—cite the high operating expense (more than $445 million in 2015 alone) and the harm to America’s national security and global reputation. Trump has stated that terrorism trials will continue at Guantánamo, even trials of U.S. citizens. Clinton has long supported Obama’s efforts to close the detention center.  If the center ever does close, the future president will face an urgent issue of detainee transfer. Domestic facilities are available, awaiting political will and congressional approval of transfer funds. A supermax federal prison in Florence, Colorado, already holds convicted terrorists, including the Boston Marathon bomber.

The lease for the Guantánamo naval station allows the United States to remain on the territory forever. The next president and Congress will have to decide whether the naval station continues to operate its controversial detention center.

CONTACT: Catharine Skipp at 305-773-5801 or cskipp@law.miami.edu