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Obama plans to transfer more Gitmo detainees amid effort to close facility

FILE - In this May 13, 2009 file photo reviewed by the U.S. military, the sun rises over the Guantanamo detention facility at dawn, at the Guantanamo Bay U.S. Naval Base, Cuba. In the last comprehensive review of prisoners held at Guantanamo Bay, the U.S. government decided nearly 50 were Â?too dangerous to transfer but not feasible for prosecution,Â? leaving them in an open-ended legal limbo. Now in 2016, it seems many may not be so dangerous after all. (AP Photo/Brennan Linsley, File)

The Obama administration is reportedly preparing to release about a dozen Guantanamo Bay detainees as its efforts to shut down the prison continue to face stiff opposition from those who believe its existence is vital to national security.

According to Reuters, the inmates who are set to be transferred to foreign countries are among the 37 detainees who have already been cleared to be sent away. The administration aims to have that entire group moved by summer.

Inmates have been sent back to their home countries when possible. However, most of the remaining 91 prisoners are from Yemen and the government will not send them back due to instability and al Qaeda activity there.

President Obama recently launched a new push to close down the detention facility in Cuba by the end of his term, as he promised voters in 2008. This would entail either sending inmates to other countries or transferring them to maximum security facilities in the U.S. Moving the suspected terrorists to the mainland is currently against the law, but Obama has not ruled out using executive actions to do it.

The administration has noted that President George W. Bush also hoped to close the Guantanamo detention facility.

"Keeping this facility open is contrary to our values," Obama said when he announced his plan to close the prison last month. "It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law.

"As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law. But 15 years after 9/11--15 years after the worst terrorist attack in American history--we're still having to defend the existence of a facility and a process where not a single verdict has been reached in those attacks--not a single one."

Peter Jan Honigsberg, professor of law at the University of San Francisco and director of the Witness to Guantanamo project, cited Obama's words in explaining why he believes the facility must be shut down.

"Guantanamo has become a black stain on America," Honigsberg said. "When America criticizes other nations for human rights and rule of law violations, people around the world point to Guantanamo in response."

Arguing against the closure in the National Review, former federal prosecutor Andrew McCarthy suggested Obama might just continue releasing prisoners to other countries if Congress does not support his plan.

"Obama, in his brass knuckles way, is telling Congress, 'Either shutter this place or I'll spring even more committed terrorists to return to the jihad," he wrote. "The threat is his most persuasive argument."

Of nearly 800 inmates who were once detained at Guantanamo Bay, 532 were transferred to other countries under President Bush. The Obama administration has transferred about 150 more, leaving fewer than 15 percent of the detainees still in custody.

Many of the remaining detainees are suspects the Department of Defense (DOD) and Department of Justice (DOJ) have determined cannot safely be transferred out of custody or tried in military commissions.

Obama's plan for closing Guantanamo has four primary elements:

  1. Securely and responsibly transferring detainees who can be sent to foreign countries
  2. Reviewing the threat posed by detainees who are not eligible for transfer
  3. Determining whether the remaining detainees can face military commissions or foreign prosecution
  4. Working with Congress to find a location in the U.S. to house detainees who cannot be transferred to other countries

Since housing inmates at Guantanamo is $65 million to $85 million per year more expensive than it would be at a mainland facility, the administration estimates closing the prison could save $335 million over the first 10 years and up to $1.7 billion over 20 years.

The plan drew swift rebuke from Republicans, some of whom want the U.S. to capture more ISIS fighters and send them to Cuba. Members of Congress have adamantly opposed any plan that moves high-risk terrorists to prisons in their home states.

"The fact that the president missed a deadline for submitting a plan to defeat ISIL last week, presumably because he was too busy working on this ancient campaign promise, is just completely unacceptable," Senate Majority Leader Mitch McConnell (R-KY) said in a speech on the Senate floor after the plan was released.

In his National Review post, McCarthy argued that if detainees were moved to the mainland, terrorists might attempt attacks against the U.S. to induce authorities to release them. He also cautioned that putting them on U.S. soil would place them under jurisdiction of the federal court system, which might grant them rights to due process and lead to their release.

Honigsberg disputed the claim that placing convicted terrorists in federal prisons in the U.S. would create a significant new security risk.

"The fact is that our 'supermax' prisons in America already house many convicted terrorists and other enemies of America," he said. "If the men are convicted of a crime, we can be assured that they will be locked up in these maximum security prisons."

According to Kevin Powers, a former legal advisor to the DOD convening authority for the Office of Military Commissions, the argument in favor of keeping Guantanamo open posits that the detainees are "unprivileged belligerents" who can be held without trial.

The position of President Obama and his supporters, Powers said, is that this policy "goes against everything regarding how we view ourselves as Americans."

Powers, now the program director for the Masters in Cybersecurity Policy and Governance at Boston College, said there are logistical issues that contribute to the slow pace of the military commissions. Attorneys, judges, staff, and witnesses all need to be transported to Guantanamo for hearings and many complications can arise that delay court dates. A motion or an argument can throw the whole process off course, as has occurred with the commissions for the 9/11 attack conspirators.

Honigsberg noted that many of the detainees were obtained from Afghan and Pakistani soldiers and the U.S. may not have concrete evidence against them. There is also a possibility that evidence was obtained through enhanced interrogation methods that could be challenged in court.

"The U.S. has never brought any charges against nearly all the men in Guantanamo," he said. "How can we justify keeping them indefinitely without charges? We are a rule of law nation, and we need to abide by what we believe in."

A new obstacle for the effort to close the Guantanamo facility emerged last week when a DOD official admitted that released detainees have been responsible for the deaths of Americans.

Appearing before the House Foreign Affairs Committee, Pentagon special envoy Paul Lewis acknowledged that "there have been Americans that have died because of detainees," but he did not provide additional details in public. According to the Associated Press, Lewis was referring to an Afghan inmate who was released under the previous administration.

Lewis told members of the committee that the closure of Guantanamo has the bipartisan support of "two presidents, four former secretaries of defense [and] eight former secretaries of state."

"[Defense] Secretary [Ash] Carter has forcefully stated that safety is his number one priority," Lewis said. "He does not transfer a detainee unless he is confident that the threat is substantially mitigated and it's in the national security interests of the United States."

Data released recently by the Director of National Intelligence (DNI) does raise concerns about the recidivism of released prisoners, though. Of the 676 inmates transferred out of U.S. custody as of January 15, 2016, 17.5 percent are confirmed to have reengaged in terrorist or insurgent activities, including seven of the inmates released since Obama took office. An additional 12.7 percent are suspected of reengaging.

The DNI warned that the risk of recidivism is highest among detainees transferred to countries with "ongoing conflicts and internal instability."

The recidivism rate is significantly lower than that of regular criminals in the U.S., but Powers acknowledged there is a risk. He said that danger makes the screening process and whatever rehabilitation and monitoring released detainees undergo extremely important.

President Obama has argued that the detention facility should be closed because it serves as a major recruiting tool for terrorists, but there is some question over whether it really is such a tool.

A Brookings Institution analysis found that Guantanamo is rarely mentioned by ISIS in its propaganda and is featured much less in al Qaeda propaganda than it used to be. Also, if the remaining detainees were transferred to prisons in the U.S., the propaganda value of their imprisonment would not be eliminated.

For Honigsberg, though, there is a greater principle at stake.

"America cannot again become the beacon of human rights and the rule of law, until Guantanamo is shuttered," he said.

Given the stalemate between Obama and Congress over the issue, Powers suggested supporters of the closure should not be optimistic.

"The way it's set up right now, unless you have agreement on the executive and legislative side, it's just not going to happen," he said.

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