Is President Obama or his administration responsible for failing to transfer some prisoners out of Guantanamo?

Question

President Obama has come under considerable criticism for failing to uphold his campaign promises to close Guantanamo Bay.

Each detainee can leave that limbo through one of four different routes): a civilian trial, a military tribunal, a foreign country’s prison system or freedom.

The third route, to send the detainees to a foreign country’s prison system, is only legal if the U.S. can be sure that the detainees will not be tortured there. Given some of the countries from which the detainees originate, this is not always an easy guarantee to make.

86 out of 166 detainees are apparently already cleared to be released. However, they are still being held because apparently there is no where to send them:

The fourth route, freedom, actually already applies to 86 of the 166 detainees. The U.S. government believes they can be safely released back into the world, but it has nowhere to send them. For many of these individuals, their home country will not take them or might torture them, meaning the U.S. has to find an entirely different country to release them to.

However, Fordham University Law Professor Martha Raynor claims that Obama does have the ability to transfer detainees from Guantanamo to other countries:

Obama has the power, Raynor explained, to transfer detainees from Guantanamo to other countries -- albeit after he has made "certain security assurances to Congress."

And "every day Mr. Obama fails to start the transfer process is another day that he affirmatively decides to keep these men locked up," Raynor wrote. "Mr. Obama must accept that the men held at Guantanamo are his prisoners, not George W. Bush's."

Is this accurate? Are there prisoners for whom an appropriate destination country (i.e. a country that has stated that they will accept the transfer, and which has provided some form of assurance that the prisoner will not be tortured) has been identified, yet are not being transferred because the Obama administration has simply failed to start the process (i.e. there are no other known factors preventing such a transfer, such as legal or diplomatic obstacles)?

Answer 1

President Obama has failed to transfer 166 detainees out of Guantanamo. (New York Times)

Is he responsible for this failure?

1. Is the President responsible for the constraints in the National Defense Authorization Act (NDAA) for Fiscal Year 2013 (preventing transfer of detainees to the U.S. and introducing conditions for transfer to foreign countries)?

   The bill passed 98-0 in the senate and 299-120 in the house. The President expressed his disagreement with the constraints against transfer of detainees to the U.S. in a signing statement. If the President had exercised his veto, the house and senate would have had to re-vote and affirm by 2/3 supermajority their support for the bill in order to have the bill become law without the President's signature. (See Article I, Section 7 of the Constitution.) It is a mixed question of law and fact, and out of the scope of this site, as to whether the President's failure to veto this bill is the cause of the constraints contained in it.

2. Given those constraints, is the President responsible for failing to transfer detainees to other countries?

   NDAA 2013 contains exceptions to the constraints prohibiting transfer of detainees. §1028(a)(2) provides that release can happen when ordered by a court. §1028(b) describes the certification that must be made by the Secretary of Defense with respect to the foreign state and detention facility. The certification must be that the foreign state:

   • (A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
   • (B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
   • (C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
   • (D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
   • (E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and

   • (F) has agreed to share with the United States any information that--

     (i) is related to the individual or any associates of the individual; and

     (ii) could affect the security of the United States, its citizens, or its allies; and

   _{§1028(c) additionally prohibits transfer of detainees to countries with confirmed recidivism of terrorist activities of previous Guantanamo transfers to that country. §1028(d) provides for a waiver of conditions (D) and (E) of this certification, but only if alternative actions are taken to the same ends. The other conditions are not waivable.}

   It is not known whether or not the US has been able to have another foreign state satisfy and agree to the requirements of the §1028(b) certification. The Secretary of Defense has not made such a certification. It is out of the scope and ability of this site to make a finding of fact with respect to whether or not such a certification could be made about any particular country.

Answer 2

If you want to decide whether President Obama is responsible, you have to look at what the responsiblity of a president entails.

The US president swears an oath:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

That means he has to primarily follow the US constitution. Where congress passes a law that violates the constitution the president isn't excused to follow the constitution.

The bill of rights says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

It doesn't use the word citizen but person. That means that the prisioners at guantanamo are protected by that clause.

It becomes more tricky when you ask whether those persons are "in actual service in time of War". Members of al-Qaida would qualify under that provision. The provision however doesn't allow the imprisionment of people who are found to be innocent.

As the US government however believes that it can safely release them the public danger clause doesn't apply either.

If congress wanted to excempt the president from the legal obligations to free the prisioners they would have to change the US constiution. Passing a law is not enough to overrule the constitutional obligation of releasing the prisioners.

Even when we look beyond the constiutional obligation against holding people against their will, the case of Libya should make quite clear that Obama claims that he can do things in war related matters that defy congressional authorisation. If he can wage a whole war without congressional approval it's very unclear why he shouldn't have the power to be able to release military prisoners on the same grounds.