In rapid succession, the U.S. in December sent Guantánamo prisoners home to Algeria, Saudi Arabia and Sudan, then capped the year with a “significant milestone” deal that resettled three long-held Uighur captives in Slovakia.
A year that began with 166 prisoners at Guantánamo, more than 100 of whom would join a hunger strike that captured President Barack Obama’s attention, ended with 11 men fewer.
For those who recall the Bush-era Guantánamo policies that sent prisoners home by the planeload, this thinning of the captive population to 155 does not suggest the Obama Administration will realize the president’s ambition of closing the detention center anytime soon.
But, taken as a whole, the sudden surge served to illustrate that the Defense and State Departments had breathed life into their long-stalled approach of trying to empty the prison on a case-by-case basis, fashioning specific solutions for each individual captive.
On Tuesday, Pentagon spokesman Rear Adm. John Kirby credited the work of two new special envoys for the deal that sent the three Uighurs to Slovakia. He called it “a significant milestone in our effort to close the detention facility at Guantánamo Bay.”
Left unsaid was that the teams had earlier in the year sealed a deal for the Uighurs to get safe haven in Costa Rica, according to U.S. government sources, only to see the offer suddenly withdrawn in September.
But in hailing the Slovaks’ “humanitarian gesture,” Kirby highlighted that the State Department may be back in the third-country resettlement business. That strategy stalled in Obama’s first term as closure allies bristled over Congressional restrictions that kept Guantánamo detainees off U.S. soil.
At Guantánamo, nearly half the prisoners — 76 of 155 — are cleared for transfer with security assurances. But many of them come from Middle East hotspots, mostly Yemen but also Syria — places too risky for release in the opinions of the Obama and Bush administrations.
Human Rights Watch counterterrorism counsel Andrea Prasow, who has worked on the Guantánamo issue for years in Washington, D.C., credits this year’s sweeping prison hunger strike for a shifting political landscape that renewed the transfers.
Reports of more than 100 prisoners refusing to eat, forcing U.S. Navy medics to renourish them with tube feedings, refocused Obama’s attention on the Guantánamo problem. “I don't want these individuals to die,” he said in April. “Obviously, the Pentagon is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this?”
Then, in a May speech at the National Defense University, he expressed sympathy for troops and hunger strikers alike and ordered the creation of the two closer positions designed to work on resolving each captive’s case.
“I think the hunger strike changed everything,” said Prasow. “It made the president pay attention and remember his pledge and decide that he was able to expend some political capital and follow through.”
One example was Congress’ recent, slight loosening of restrictions on transfers to foreign countries. Now detainees can, in some instances, be sent to countries on the U.S. State Sponsors of Terrorism list, and transfers to nations where earlier freed detainees are defined as “recidivists” are no longer completely taboo.
“I think the Congress shifted in part because it became clear that the president was serious,” Prasow added.
Congress kept its ban on transfers to U.S. soil for any purpose — whether for federal trial, incarceration as even a convict, or emergency medical treatment.
This year’s transfers began in August when the Pentagon sent home to Algeria two men described by their lawyers as hunger strikers. Both went voluntarily.
Perhaps the most significant of the recent releases was that of Sudanese captive Ibrahim Idris. A psychiatric patient, Idris got to Guantánamo on Day 1, Jan. 11, 2002, as a suspected Osama bin Laden bodyguard. Within hours of his repatriation to Khartoum, Idris was claiming torture.
Idris, like the Uighurs, won freedom through the federal courts. His lawyers used a novel legal argument to persuade Judge Royce Lamberth to issue a release order. They argued that Idris was too mentally ill, too obese and too incapacitated by geriatric diseases to be a future threat to the United States. That legal approach pivoted away from arguing that he wasn’t an “enemy combatant” under the expansive federal appeals court definition.
Not only did the judge accept the argument and order Idris released, but the Justice Department eased his way home by not opposing it, something it had routinely done in Guantánamo habeas corpus petitions. That approach could be a possible template for future releases.
The Algerian transfers represented White House determination to go forward even with the unpopular. The return of Djamel Ameziane and Belkacem Bensayeh to the nation each man fled in the 1990s enraged attorneys who are advocates for closure, but accused the administration of choosing the easier path of repatriation over resettlement.
It was unclear why it took so long for the U.S. to send the two detainees to Saudi Arabia.
Both were cleared long ago but not included in the massive Bush administration transfers that sent more than 500 captives from Guantánamo. One reason may be the continued Pentagon effort to figure out precisely who were the men they held for more than a decade in Cuba. U.S. intelligence reports had for years incorrectly profiled Hamood Abdulla Hamood, one of the men sent to Saudi Arabia in December, as a Yemeni.
The transfer home of a second Sudanese man, Noor Uthman Muhammed, represented what had been one of the only ways out of the prison short of suicide. He, like three other captives before him, pleaded guilty to being an al Qaeda foot soldier in exchange for a short sentence and return home.
For his part, the chief prosecutor, Army Brig. Gen. Mark Martins, acknowledged that a conviction and concluded sentence had proved to be a reliable path out of Guantánamo. But he would not say whether lawyers for uncharged detainees were knocking at his door seeking plea deals to become war criminals and go home.
One piece of the closure strategy still denied to Obama is the prosecution of Guantánamo detainees in civilian courts. It’s unclear how captives held in U.S. custody without charge for a decade or more could face trial. But it’s a tool that Obama clearly wants, as he made clear in a statement he issued Dec. 26 from vacation in Hawaii after he signed the National Defense Authorization Act into law.
“The continued operation of the facility [at Guantánamo] weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists,” Obama said.
“The executive branch must have the authority to determine when and where to prosecute Guantánamo detainees, based on the facts and circumstances of each case and our national security interests.”