Why It’s Taking So Long to Close Guantanamo

By Dafna Linzer

As we have reported throughout the year, the Obama administration has been serially hampered in its efforts to shutter the prison at Guantanamo Bay, Cuba. It underestimated [2] the time needed to close the facility and was unprepared for Congressional opposition.

Finding countries to adopt detainees has proven difficult, and only this month did the administration locate a prison to move detainees into once Guantanamo closes.

Meanwhile, a front-page piece in yesterday’s New York Times suggested that Guantanamo won’t be closed “until 2011 at the earliest .” As the Times notes, the administration has had trouble getting the necessary Congressional funding to purchase and upgrade a prison in Illinois where as many as 100 detainees may be moved.

This is not where the Obama administration imagined it would be 11 months ago, when the president signed an executive order to close the prison at Guantanamo Bay by January 2010.

That day, the president set in motion an interagency task force to determine which detainees could be released and whether any could be prosecuted. Obama suspended the Bush-era military commissions on Guantanamo Bay and administration officials emphasized a preference for prosecutions in federal court.

But in nearly a year, only one detainee has been charged in federal court and the military commissions have been revived.

In November — 10 months after Obama signed the executive order — Attorney-General Eric Holder announced that another five detainees would face federal charges in the Southern District of New York for their alleged roles in the Sept. 11, 2001, terrorist attacks.

Only now is a federal grand jury considering charges for the five. And with no trial yet under way, it could be years before the Justice Department secures the conviction of a single detainee.

Even after Guantanamo is closed, some detainees will be held indefinitely, without charge or trial, as they were under former President Bush. Like the Bush administration, Obama administration officials have cited the same legal authority — the 2001 Congressional Authorization for Use of Military Force — as the legal basis for prolonged detention.

A look at where we are now:

• Since Obama’s inauguration, the Guantanamo prison population has fallen from 241 to 198 [7]. One of those prisoners died in custody and one was transferred to New York to face charges for his alleged role in the 1998 U.S. embassy bombings in East Africa.
• Justice Department officials have said as many as 90 detainees have been cleared for release in the past year. Of those, 20 have already been turned over to third countries for release or trial and 21 others have been sent back to their home countries. The administration has not revealed any details regarding the legal agreements that governed transfers to third countries or said under what conditions other detainees were released.
• Ten detainees who are under court order to be released from Guantanamo remain at the prison. Seven of those ordered freed are Chinese Muslims who are part of the Uighurs community. The administration had hoped to resettle the Uighurs quickly, but it has proven difficult to find countries who will accept them and where in turn the Uighurs are willing to go.
• In May, the Senate blocked the administration from moving any detainees into the United States for release or continued incarceration. Until the law is changed, the only detainees who can be moved are those who will be put on trial.
• Last month, two top administration officials who were working to close Guantanamo announced they were leaving the administration. Greg Craig was forced out of his job as White House Counsel in November and is returning to his Washington law firm. Phillip Carter, who was a principal assistant secretary of defense for detainee issues, resigned last month, citing personal issues. Before joining the Obama administration, Carter had been a vocal opponent of the previous administration’s detainee policies.
• Thirty-two detainees have won their habeas corpus cases and were ordered released by courts. Nine have lost their suits. The government has so far decided to appeal two cases.