Gitmo Forever

The population of the U.S. prison facility at Guantánamo Bay dipped last week to 174 as President Barack Obama’s administration transferred two prisoners to Germany.

With the latest transfers, the United States has managed since Obama’s inauguration to whittle down the number held in the notorious U.S. prison in Cuba by 66.

Still, Obama’s pledge to close what he deemed a blot on the legal and moral character of the United States — and a recruitment tool for Islamist extremists — is proving exceedingly difficult to fulfill. Administration officials and others who advocate shuttering Gitmo say they worry that a Republican victory in the upcoming midterm elections will make the mission impossible.

A U.S. official said he feared that Republicans would impede steps to close the prison because it has been a signature issue for Obama. The official asked not to be named because of the sensitivity of the topic.

A House Democratic aide, who also spoke on condition of anonymity, added: "It’s hard to envision a path forward."

Legislation already in place — and likely to be renewed — bars the transfer of Guantánamo detainees to the United States except for the purpose of putting them on trial. The restriction, passed in 2009, effectively dashed administration hopes to transfer 48 detainees to a maximum-security prison in Thomson, Ill. The 48 have been designated for long-term detention because of the nature of their alleged offenses and the lack of evidence against them that is admissible in U.S. courts.

Meanwhile, a provision of the defense appropriations bill under consideration by the Senate would outlaw sending prisoners to countries such as Yemen that have a major al Qaeda presence — and a poor history of holding on to convicted terrorists. Given that 57 of the remaining detainees eligible for transfer are from Yemen, that provision alone could ensure that Guantánamo remains open for years to come.

"It becomes very hard to bring down the population if it becomes very hard to transfer people or try them in Article III [regular criminal] courts," said Christopher Anders, senior legislative counsel for the American Civil Liberties Union (ACLU). He said prospects for closing Gitmo would diminish further "if Republicans gain control of one or both houses."

Shutting the facility was a major issue for Obama during his presidential campaign. In a 2007 speech billed as his first major foreign-policy address, he said the indefinite detention of terrorist suspects there had "compromised our most precious values."

Once inaugurated, he vowed to close Guantánamo within a year. Asked about that pledge at a recent news conference, Obama said, "I wanted to close it sooner. We have missed that deadline. It’s not for lack of trying. It’s because the politics of it are difficult."

One of the ironies of Obama’s predicament is that George W. Bush’s administration released more than 500 Guantánamo detainees, sending many back to their countries of origin. About 10 percent have returned to the ranks of al Qaeda or other terrorist groups; another 11 percent are suspected of having done so, according to U.S. officials.

"Bush made a serious error sending some of them back," said Sen. Kit Bond (R-Mo.), ranking Republican on the Senate Intelligence Committee and a vocal opponent of shutting Guantánamo. "Twenty percent is not a bad recidivism rate for car thieves and bank robbers," but not for terrorists, he said.

(Of those released by the Obama administration, however, only one detainee — an Afghan known as Abdul Hafiz or Abdul Qawi — has rejoined jihadi ranks, the U.S. official said.)

Bond said Guantánamo was "the best and most humane place to hold" suspected foreign terrorists. He dismissed arguments that the prison remains a major recruitment tool for al Qaeda, saying, "any place we hold detainees is going to be alleged to be a torture facility."

In addition to Republican opposition, the White House has had to contend with civil liberties groups that want Guantánamo closed but oppose moving prisoners elsewhere for indefinite incarceration.

"Our concern with Gitmo is more about the policy than the geography," the ACLU’s Anders said.

The administration has stumbled in its efforts to try high-profile detainees such as Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. Plans to put him on trial in a criminal court in New York City faltered because of local opposition; the administration has yet to come up with a consistent formula for military tribunals to handle other hard cases.

Sen. Lindsey Graham (R-S.C.) complained Monday, Sept. 20, that the administration has no legal framework for dealing with terrorist suspects. "Democrats are scared to death to talk about this," he told an audience at the American Enterprise Institute. "And most Republicans just demagogue it."

Given this situation, the State Department has worked incrementally to release as many detainees as possible, looking to Europe in particular to shoulder the burden. Of the 174 still at Guantánamo, 60 detainees have been vetted by U.S. intelligence, the Defense Department and the Justice Department, and were approved for repatriation or resettlement in other countries.

A small State Department office under Daniel Fried, a former assistant secretary of state for European affairs, has been methodically negotiating transfers. As of Sept. 21, the tally of countries that have taken in detainees from the prison is available here.

The latest to leave are being resettled in Hamburg and the southwestern German state of Rhineland-Palatinate. German Interior Minister Thomas de Maizière told the Associated Press that the two had asked not to be identified for their own protection. However, a London-based organization called Reprieve said one was Ayman al-Shurafa, a Palestinian born in Saudi Arabia who had spent nearly nine years at Guantánamo and suffers from depression.

De Maizière said Germany, which took one inmate in 2006, has "made its humanitarian contribution to closing the detention center."

The State Department’s Fried, who declined an on-the-record interview, has called his job "miserable" but indicated that he will stick with it as long as he can continue to transfer detainees.