Time May Be Running Out To Lift The Guantanamo Transfer Ban

CREDIT: AP Photo/Charles Dharapak, File

It’s hard to believe but momentum is finally behind efforts to close Guantanamo. The Obama administration has reengaged and refocused on getting the prison camp closed as soon as possible. The pace of transfers out of Guantanamo has picked up significantly. Changing circumstances in Yemen and Afghanistan hold the potential for big reductions in the detainee population. And Congress has for the first time voted to make it easier to close Guantanamo. While this represents genuine progress, time is not on the side of those advocating for closing Guantanamo because the political calendar could make difficult policy decisions coming this year the last best chance to get Guantanamo closed.

When Congress lifted the overseas transfer restrictions in the 2014 National Defense Authorization Act, it kept in place the prohibition on bringing any Guantanamo detainees into the United States for either trial or incarceration. Thus trial in federal court — the best option for prosecution — is currently off the table. While other extremely difficult problems exist beyond federal trials, there is no question that it is impossible to close Guantanamo without bringing some of the detainees into the United States. And 2014 may be the last chance to get Congress to lift the ban.

It is clear the political salience of Guantanamo and terrorism trials has faded from its height in 2009-10. Five years ago, the mere prospect of a trial in New York City of accused 9/11 mastermind Khalid Sheik Mohammed sparked months of heated debate and an ultimate reversal from the Obama administration. Just last month, top al Qaeda figure and the son-in-law of Osama bin Laden, Suleiman Abu Ghaith, was convicted in a New York federal court and hardly anyone even noticed.

The Senate, under Democratic leadership in committee and on the floor, won the vote to lift the U.S. transfer ban last year but it died in conference with the Republican controlled House of Representatives. The significantly reduced political resonance of this issue should add to these efforts in 2014, but time may be running out. Democrats currently hold 53 seats in the Senate and two Independents caucus with them, giving them a 55-45 majority. But that majority is in grave jeopardy in the upcoming mid-term elections, as Democrats are defending a large number of vulnerable seats and several forecasters are projecting a Republican takeover of the Senate.

While it is conceivable that Republicans in Congress would relent to Democratic-led efforts to lift the transfer ban, it is highly unlikely that they would initiate such action if they controlled both chambers beginning in 2015. Such a Republican majority in Congress would extend at least through the end of the Obama administration. If the prison at Guantanamo exists on January 20, 2017, it is virtually certain to remain for decades if not forever no matter who succeeds President Obama or which party controls Congress. Closing Guantanamo requires a significant investment of political will and capital, and it is unlikely that any new president would elect such a course following the eight years of failure and pain of the Obama administration, especially when the political payoff is so low.

Lifting the ban on transfers to the United States will not resolve all the remaining problems of Guantanamo. Many advocates for closing the prison cannot accept any detainees held in military custody without charge or prosecutions in military commissions. It is unlikely that solutions to those concerns are on the table this year, and it is therefore understandable to argue that lifting the ban on transfers into the United States would only move those problems onto American soil. That is not reason enough, however, to object to lifting the transfer ban.

The ban’s continuance would virtually guarantee the permanence of the very policies that those who oppose Guantanamo object to the most. That would be a far worse outcome than accepting the temporary step of bringing some detainees into the U.S. while preserving the chance that solutions can be found for continuing problems.

We are finally making progress on closing Guantanamo but we cannot let the perfect be the enemy of the necessary. The next important step in that process is lifting the ban on transfers into the United States and it should be the top priority this year for all advocates seeking to close Guantanamo.

Ken Gude is a Senior Fellow with the National Security Team at the Center for American Progress.