Reprieve is often asked why prisoners who have been cleared for release by the US military still cannot leave Guantánamo. The answer is that all three legal mechanisms - and all three practical routes - to their release have been effectively blocked. Here, we explain how.
There are three legal mechanisms by which Guantánamo prisoners may be released: 1. Release by Executive Order 2. Release by Military Clearance and 3. Release by Court Order. If one of these mechanisms is triggered, there are then three practical routes by which prisoners may leave: 1. Release to Home Country 2. Release to United States 3. Release to Third Country.
Here's how each of these mechanisms and routes has been blocked:
1. Release by Executive Order
President Obama could have released or transferred Guantánamo detainees in the period between his Executive Order to Close Guantánamo in 2009 and the US Congress's creation of roadblocks. The opportunity was wasted. Now, President Obama’s power to release Guantánamo detainees is limited by Congress's 2012 National Defense Authorization Act (“NDAA”), signed in January 2012.
The NDAA has placed near-impossible restrictions, amounting to an effective prohibition, on the use of military funds to transfer detainees. The only possible Executive exception, or Waiver, is where it is in the United States’ “national interest” to enact a transfer. No such Waiver has been signed by President Obama since the legislation passed.
2. Release by Military Clearance
Detainees could be released directly by the US Department of Defense (DoD), the authority responsible for their detention. The DoD has its own scale for establishing the level of security risk posed by current Guantánamo inmates. A Task Force created by President Obama concluded in 2010 that under that scale, 126 of the men at that time could be cleared for release. Some of these prisoners had also previously been cleared by the Bush Administration. However, 87 cleared prisoners still remain imprisoned more than two years after the Task Force completed its report.
This is because the implementation of the NDAA makes the Department of Defense clearance classification irrelevant. The DoD can no longer release Guantánamo detainees solely based on its internal rating system, but now has to meet the NDAA's extreme restrictions. These restrictions (discussed below) do not take into account whether the detainees have been cleared. This means that a prisoner's innocence is deemed irrelevant to the process of releasing him; innocence does not ease the path to release.
3. Release by Court Order
Guantánamo detainees can appeal to federal judges to compel the Department of Defense to release them; a federal court order would circumvent the NDAA restrictions.
Under this method, detainees challenge their detention by seeking a court order of habeas corpus – essentially asking the court to declare their detention illegal. In 2008, the United States Supreme Court ruled in Boumediene v. Bush that US courts can make habeas corpus orders for non-US citizens detained at Guantánamo. (The Court specifically ruled that a Congressional Act prohibiting such orders was unconstitutional.) Following Boumediene, a number of Guantánamo detainees challenged their detention in court. Some of these habeas petitions were granted, meaning that the detainee had indeed been held illegally. The release of some of these habeas winners was not contested by the government and such prisoners returned home or to a third country willing to take them.
However, since 2010, the D.C. Circuit Court has consistently decided against the detainee on appeal[1], meaning the US courts have become effectively worthless to Guantánamo prisoners.
The problem was that the Supreme Court’s Boumediene opinion lacked clear guidance on the standards and procedures for Guantánamo habeas corpus review. This allowed lower (and possibly more hostile) courts to narrow and misinterpret the meaning of the Boumediene decision to a point where it became worthless. For example, the D.C. Circuit Court set the standard of evidence required of the government to oppose a release as a “preponderance of evidence” - extremely low and vague. The Court has also allowed hearsay evidence, and has even accepted the existence of simply “some evidence" as sufficient for continued detention. Furthermore, the courts now side with the government whenever it presents a 'plausible' allegation about the prisoner. In reality, this shifts the burden of proof onto the prisoner, as he must actively disprove the allegations about him, while the government may simply present them as fact.
In sum, while detainees can challenge their detention in court they now have no chance of winning.
As the ultimate judicial decision-maker, the US Supreme Court could clarify its Boumediene opinion, overriding the D.C. Circuit Court’s apparent resolution to block Guantánamo releases. However, the Supreme Court has since refused to hear Guantánamo-related cases. This has effectively ended all hopes of judicially-ordered releases for detainees. Eleven years after the island prison opened, the Supreme Court does not seem interested in delivering justice at Guantanamo Bay.
Even if one of the above mechanisms could be triggered, there are obstacles to the three practical routes of release:
1. Release to Home Country
Many of the remaining cleared detainees are citizens of countries where “substantial grounds” exist to believe that the returning men will be tortured. Both the Bush and Obama Administrations signalled that they do not intend to repatriate detainees to countries where the US believes that it is “more likely than not”[5] that they could be tortured. Ingo some cases, the US government has refused to send cleared Guantánamo detainees to their home country - and in most of these cases the detainees themselves did not wish to be sent back. However, following the Arab Spring, some home countries are no longer deemed human rights abusers and many of the men would like to be repatriated.
The requirements imposed by the NDAA make these transfers much more difficult.
The 2011 NDAA imposed stringent restrictions on the use of funds for resettlement to third countries or repatriation. It also requires 'guarantees' that no government can realistically make: that the released individual (even if entirely innocent of any wrongdoing) will never threaten the United States in any way in the future. In practice, no government can provide such a guarantee- even about its own citizens. The restrictions, although initially set to expire in 2011, were renewed in the 2012 NDAA.
The NDAA restrictions can only be circumvented in two ways: if a US court orders the release or if a National Security Waiver is issued. A Waiver can be issued when the Secretary of Defense, with “the concurrence of the Secretary of State and in consultation with the Director of the National Intelligence”, makes the case that the release of the detainee is in the national security interests of the United States. With the courts siding with the government and the Obama administration yet to request a National Security Waiver, release of the men to their home countries is highly unlikely.
2. Release to the United States
Allowing cleared detainees to resettle in the United States would seem the moral and straightforward solution.
However, after touting Guantánamo detainees as “the worst of the worst” (a statement which was later retracted), the US administration has failed to persuade the American public to accept even admittedly innocent Guantánamo detainees into the States. The cost to resettle these men in the US would be more than political. Once legally on United States territory, the cleared detainees would have access to a wider array of rights. In effect this would mean that the men’s chance of success in legal actions against the US government seeking compensation for mistreatment would be more likely.
The courts have failed to challenge the government's position. In 2010, the D.C. Circuit Court in Kiyemba v. Obama stated that the courts do not have the authority to compel the US government to resettle cleared Guantánamo detainees in the United States – even if the Government has admitted that they pose no risk and there is no other country to which the men could be resettled[3]. The Court’s decision meant that for cleared detainees who fear torture in their home country and an unwillingness from a third country to offer a new life, Guantánamo is the only home.[4]
However, both the government's and the court's position became moot with the passage of the 2011 NDAA, renewed in 2012.
The NDAA now prohibits the use of military funds for the transfer, resettlement, or prosecution of Guantánamo detainees on United States territory.
There are no exceptions to this restriction, including court orders and Executive Waivers. The US Congress has made sure that Guantánamo detainees will never set foot in the United States.
3. Release to Third Country
In light of the roadblocks in releasing Guantánamo inmates to home countries and the United States, the US government has encouraged third countries willing to take cleared detainees or willing to prosecute and imprison detainees. In some cases, third countries accepted or expressed interest in accepting released Guantánamo detainees.
However, either in fear of damaging relationships with the home countries of detainees - such as China in the case of the 17 Uighurs - or for other political reasons, negotiations between the United States and third countries have stalled. The United States’ stance of asking European countries to accept detainees, without resettling any of the detainees itself soured such agreements.
Moreover, the 2012 NDAA imposes identical restrictions on using military funds for release and resettlement to third countries as it does in the case of home countries. This means that release of cleared Guantánamo detainees has been suspended and is now nearly impossible.
In summary, the hostility of Congress, the weakness of President Obama's executive and the indifference of the courts now ensure that 'cleared' Guantánamo prisoners are detained indefinitely. For more information, please email info@reprieve.org.uk.
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