THE BLOG
08/30/2013 09:16 am ET Updated Nov 04, 2013

Guantánamo: The President Could Close It Tomorrow If He Really Wants to

Guantánamo continues to burden U.S. foreign policy, undermining our credibility and providing an excuse for every foreign dictator who abuses human rights. As the president has said: "GTMO has become a symbol around the world for an America that flouts the rule of law." He has also said exactly what must be done: "We've got to close Guantánamo... It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed."

Great words -- but very little action.

There is a myth circulating that, because the president says he wants to close Guantánamo, he would if he could, but that he can't because Congress has stopped him. That is not so. The president has the authority right now in existing legislation to achieve that result by transferring detainees out of Guantánamo.

Congress did amend the National Defense Authorization Act three years ago to prohibit funding for the transfer of any Guantánamo detainee to the U.S. It also prohibited funding for transfers to other countries, unless the Defense Secretary personally certified that the transferred detainee would never engage in terrorist activity. Because no one can give such a personal assurance, that provision effectively blocked transfers. But Congress then amended the law to allow the Secretary to waive that requirement and to transfer detainees to other countries if he finds (1) that the receiving country will take steps to "substantially mitigate" the risk that the detainee will engage in terrorist activity, and (2) that the transfer is in U.S. national security interests.

Those are quite makeable findings. The president has already stated publicly that it is in the U.S. national security interest to transfer all the detainees from Guantánamo. Moreover, many countries have expressed a willingness to accept detainees and have offered to undertake the steps necessary to "substantially mitigate" the risk that the detainee could ever engage in terrorist activity. As Carl Levin, the Chairman of the Senate Armed Services Committee, has pointed out, that provision "provides a clear route for the transfer of detainees to third countries." This week's announcement of the transfer of two prisoners from Guantánamo to Algeria is welcome news and proves Senator Levin's point. It can be done.

The president also has another route available. The law allows the administration to transfer detainees pursuant to a court order. Simply by consenting to court orders for the release, for example, of detainees who have already been cleared, the Justice Department could authorize their transfer free from congressional restrictions. Yet, it has never done so.

There is a great cost to this inaction. The pentagon recently reported that the Guantánamo prison costs U.S. taxpayers almost a half-billion dollars a year - an incredible $3 plus million per prisoner per year, about 40 times the cost of a U.S. super max prison. And we are paying that even though most of these men - 84 of the 164 detainees still there - were cleared for release more than three and a half years ago by a special task force made up of top U.S. security and law enforcement officials. Yet, they remain imprisoned, and we continue to pay. Why?

Beyond its expense and the harm it causes to our reputation and security, Guantánamo is a terrible human tragedy. During my visits there, I have had to inform prisoners that one of their parents or grandparents or a brother or sister had died, and then sit and watch them cry knowing that they had missed their last chance to say goodbye. Even the worst convicted prisoner in the U.S. is allowed family visits. These men are not. And they have never been convicted, or even tried, and most have been cleared.

The fact is that only a small number of the detainees now at Guantánamo are considered to pose a significant threat. Most were picked up soon after 9/11 in and around Afghanistan and sold into captivity by local tribes people for bounties. They were not the leaders, who are known to have escaped, but at most low level foot soldiers, as well as a lot of innocent people swept up by mistake. It was generally recognized by the summer of 2004 that none of the detainees then at Guantánamo was a significant player. As a June 21, 2004 article in The NY Times reported: "In interviews, dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said, that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of al-Qaeda."

It was only after the summer of 2004, that the Bush administration began sending so-called "high-value detainees" to Guantánamo from "black sites" far from the conflict in Afghanistan. Ten were sent in September 2004, 14 more - including KSM - in September 2006, and five more in 2007-08. In total, 29 prisoners were transferred to Guantánamo after August, 2004. Some have actually been released. One was convicted in U.S. court and is now incarcerated here. Of those remaining at Guantánamo today, 26 are apparently considered potentially as significant threats. They should be tried and, if convicted, incarcerated. The others should be transferred out.

The president should do this immediately, exercising his existing authority to transfer the 84 men who have already been cleared, and then continue with the majority of the others.

There is always a risk, of course, that a released prisoner will do something bad. Every judge and governor faces that risk in releasing a prisoner. And, if that happens, the person or political party authorizing the release may well face criticism. But fear of criticism cannot stop us from doing what is right. How do you explain to the 84 cleared men that they must remain in prison because it is politically inconvenient to let them out? How do you explain to the world that we must keep Guantánamo open, even though it stains our reputation and compromises our ability to combat terrorism, because we fear political criticism? This president must have the courage to follow-up his words with action. Further delay is not tolerable.

Mr. Wilner was counsel of record for Guantánamo detainees in the case establishing their right to counsel, and in the two Supreme Court decisions confirming their right to habeas corpus.