WASHINGTON (CN) — With 84 days left in office, President Barack Obama has offered few details on how he will fulfill a promise he made nearly eight years ago to close the detention center at Guantanamo Bay.
“At this point, the president is running out of time,” J. Wells Dixon with the Center for Constitutional Rights said in a phone interview Wednesday. “Unless there are things happening now that I don’t know about, which is entirely possible, I don’t see evidence that he’s taking the necessary steps to make that happen.”
Obama created the Periodic Review Board process in 2011 to consider the risk posed by the dozens of men who had been detained at the prison camp indefinitely without charges.
Akin to a parole board, the PRB process whittled the Guantanamo prison population down to 60.
Twenty of the remaining detainees will be transferred to a third country in the coming months, but the government cannot close the detention center until it figures out what to do with the remaining 40.
According to figures compiled by the Miami Herald, it costs nearly $7.6 million to house each detainee per year.
While the administration wanted to bring the remaining detainees to a secure detention facility in the United States, Congress voted to forbid such transfers in November 2015.
Resisting their objections, Obama proposed a plan in February that proposes working with Congress to lift the ban. A Pentagon spokeswoman meanwhile confirmed that there has been little movement on this front.
“Although there has as yet been no significant progress getting the ban on bringing Guantanamo detention facility detainees to the United States lifted, DOD remains dedicated to the administration commitment to work with Congress in an effort to get this done,” Pentagon spokeswoman Lt. Col. Valerie Henderson said in an email. “Closing the GTMO detention facility remains a presidential and secretary of defense priority.”
Dixon, of the Center for Constitutional Rights, said President Obama could go to court and ask a federal judge to strike the ban down as unconstitutional, but thinks the president is unlikely to do that.
Bringing the detainees stateside is not the only option. The remaining detainees could also be sent to a third country, or undergo foreign prosecution or prosecution by military commission.
Complicating the logistics for these options, however, 10 of the remaining detainees are ineligible for the periodic-review process.
Two pleaded guilty to terrorism-related charges, and the en banc D.C. Circuit recently upheld another’s conspiracy conviction.
Seven others, including five accused 9/11 plotters, are undergoing pretrial proceedings in the military commissions system. There are no trial dates set for these cases, which could still be years away.
The other 30 detainees all received periodic reviews, but three are still waiting their results and 27 were recommended for continued detention.
Known as “forever prisoners,” this group of detainees arrived at Guantanamo between 2002 and 2008. They are considered too dangerous to release, but the government has so far been reluctant to charge any of them, though it still could.
The chief prosecutor for the military commissions, Army Brig. Gen. Mark Martins, recently hinted at the possibility.
“There are other individuals that I may swear charges against, and that’s all I can really tell you,” Martins said during an Oct. 10 press conference, on the eve of resumed pretrial hearings in the 9/11 case.
The detainees who remain under law-of-war detention are subject to further periodic review, he added. A State Department official made similar remarks when asked how the administration will handle the indefinitely detained prisoners.
“Those that are not currently approved for transfer and are not in military commissions proceedings are eligible to be reviewed by the periodic review board, which will determine whether their continued detention is necessary to protect against a continuing significant threat to the security of the United States,” a State Department official said in an email.
Detainees are entitled to a full periodic review every three years, and a file review every six months, which can trigger a full review if it raises a significant question about whether continued detention is warranted. None of the remaining indefinitely detained prisoners are entitled to another full review before President Obama leaves office, and only 11 are entitled to a file review in the next 84 days.
The State Department denied a follow-up request for an interview with someone who could specifically answer questions about what the administration plans to do with the indefinitely detained prisoners.
Guantanamo detainees, and the forever prisoners in particular, are often referred to as the “worst of the worst.” But Dixon says the administration could “simply release” some of them.
“I say that because the Periodic Review Board process is fundamentally flawed,” he said.
In clearing detainees for transfer, the periodic review board frequently cites a detainee’s candor, acknowledgment of past terror-related activities and a renunciation of extremist ideology
Dixon reads this as showing that the board looks for evidence of a “changed mindset,” or “whether a detainee admits all of the allegations that are put before them in the periodic review board process.”
Though the Pentagon denies this, Dixon said the Catch-22 for detainees undergoing the review process is that the board routinely relies on evidence obtained through torture.
Dixon said that can include evidence federal judges have suppressed in Guantanamo habeas cases.
If you’re a Guantanamo detainee, “what do you do,” Dixon asked. “Do you admit those allegations to show a ‘changed mindset?’ Or do you say, ‘wait, this is a product of torture, I didn’t do these things’?”
Dixon said the Periodic Review Board could interpret it as a lack of candor about prior conduct, concluding that a detainee is still in the fight, when detainees choose not to admit to the allegations against them.
“Like everything else about Guantanamo, it would be hilarious if the consequences weren’t so tragic,” he added.
The Pentagon’s Henderson denied the assertion, saying any material that the Periodic Review Board considers “is screened for information obtained through cruel, inhumane and degrading treatment.”
Such information is removed from the compendia before it is presented to the board, Henderson added.
Despite the ban on bringing the remaining detainees to the United States, the Pentagon’s Henderson said other options, including prosecution in federal courts, are still being explored.
The Pentagon did not provide further details about that option, but Dixon says it could be viable — particularly for one of his clients, Majid Khan, the only known legal U.S. resident held at Guantanamo.
Pakistan-born Khan pleaded guilty to terrorism-related charges in 2012 but his sentencing has been postponed until 2019. The plea deal requires Khan to testify against self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed in an eventual trial.
Under a provision of the National Defense Authorization Act currently winding its way through Congress, detainees would be allowed to plead guilty in U.S. federal courts by video teleconference, and serve out their sentences in foreign countries.
“Majid would be willing to go that route,” Dixon said.
This option not only skirts the congressional ban on bringing detainees to the United States, Dixon noted, it also overcomes the inability to prosecute these men in the military commission system. Anyone willing could plead guilty to providing material support for terrorism, which is not a triable offense by military commission because it is not a war crime, Dixon said.
It is unclear if the administration has made any progress in identifying third countries where detainees who plead guilty could serve out their sentences.
Meantime, prison operations are downsizing along with the detainee population. Last month, commanders shut down operations at Camp 5, a maximum-security lockup with 100 cells. That leaves only two detention-center facilities open, Camps 6 and 7, the latter of which houses the high-value detainees, including Khalid Sheikh Mohammed.
Navy Capt. John Filostrat said the prison staff will shrink by the end of the year, downsizing from roughly 1,900 to 1,500 personnel overseeing detention-center operations.
A lawsuit this week by Miami Herald reporter Carol Rosenberg suggests, however, that prison-staffing levels at Guantanamo are at an all-time high. Rosenberg, who has covered Guantanamo for 15 years, claims that U.S. Southern Command is slow-rolling her request for accurate staffing levels in relation to funding earmarked for expansion projects.
The Pentagon proposed $240 million on building upgrades and new construction in the next five years: $66 million to build a new school, and another $40 million for a new fiber-optic cable that will run from the base to Puerto Rico, Rosenberg’s complaint states.
The Pentagon declined to comment on the pending litigation.
Democratic presidential candidate Hillary Clinton has said she supports President Obama’s plan to shutter the prison. Republican presidential candidate Donald Trump meanwhile has promised to keep the prison open.
Capt. Filostrat said the joint-task force supports the president’s plan to close the detention center, but noted that it will adjust accordingly to a new administration.
When asked if parts of the detention center could be put back into immediate use under a Trump presidency, Filostrat could not say with certainty how many detainees the prison could hold. He did note, however, that it once held about 780 detainees.
A representative for the Joint Task Force Guantanamo for U.S. Southern Command did not respond to several emails seeking comment about the prison’s current carrying capacity.
Filostrat meanwhile said Camps 5 and 6 could hold several hundred, while Camp Delta, which includes the first four camps, could theoretically hold more.
“Whatever the order is, we’ll carry it out no matter who comes in next,” Filostrat said.
“We’re planning for every contingency right now,” he added. “We’ll follow the orders that we get from U.S. Southern Command, and right now we’ll take care of the detainees safely and humanely while they’re here.”