COLUMN: President Cannot Legally Transfer Guantánamo Detainees

February 29, 2016
Weekly Column and Op-Ed

Last week, the president announced his plan to close the U.S. Naval Station Guantánamo Bay, Cuba, where terrorist detainees are being held. The president’s plan is to shut down Guantánamo Bay by transferring some of the 91 detainees to other countries and moving the rest to the U.S. mainland. Closing Guantánamo has been a campaign pledge of the president since 2008, and he is attempting to close the facility in his waning months in office. There is one problem for this plan: the president is obligated to follow the law that Congress passed and that he signed, which forbids transferring Guantánamo detainees to U.S. soil.

The plan seeks to lift restrictions originally put in place in the annual National Defense Authorization Act (NDAA) in 2009, when Democrats controlled Congress, and that has been renewed annually. Bipartisan majorities in Congress have maintained those restrictions ever since. I voted for and support the current law that prevents transferring detainees to the U.S. mainland. The president’s own appointed officials have advised that acting to transfer the prisoners would defy the law. U.S. Attorney General Lynch and Secretary of Defense Ash Carter have confirmed the law “currently does not allow” Guantánamo detainee transfers to the U.S., and the Attorney General said the option "is not, as I am aware of, going to be contemplated, given the legal prescriptions."

The president also left critical information out of his announced plan: the location of transferred prisoners. Where exactly on the U.S. mainland does he propose moving these prisoners? The plan failed to include the exact cost and location of an alternate detention facility. Without this information, Americans are left in the dark as to where these prisoners will end up.

Transferring detainees to other countries also comes with a risk. Just last Tuesday, Spanish and Moroccan authorities arrested four suspected members of a jihadist cell who were attempting to recruit ISIS fighters. One of the suspects is a former Guantánamo detainee who had been captured in Afghanistan and released to Spain.

The cases of released detainees who have returned to the battlefield are unacceptable. The Director of National Intelligence estimated in a 2015 report that of the 653 detainees who had been transferred out of Guantanamo, 30 percent were suspected of or confirmed to have re-engaged in terrorist activities. According to the Director of National Intelligence, terrorist activities include planning terrorist operations, conducting suicide operations, and financing or recruiting others for terrorist operations. 

This kind of ‘catch and release’ is not an option for Guantánamo detainees. The law is clear that the president does not have the legal authority to transfer detainees to American soil. According to that law, the military is prohibited from spending any funds to modify a detention facility in preparation for a transfer.

If the president acts unilaterally in defiance of the law to transfer terrorist suspects at Guantánamo Bay, I will join the House in taking steps to keep terrorists where they belong: in Guantánamo.