Prison Break

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Portraits of Yemeni inmates at Guantanamo Bay are held up by relatives during a protest to demand their release, outside the U.S. embassy in Sanaa April 1, 2013. Khaled Abdullah/Reuters

AT A press conference on Tuesday, President Obama vented about his inability to close the prison at Guantánamo Bay—which is back in the news thanks to a hunger strike involving as many as 100 detainees. “It is expensive. It is inefficient. It hurts us in terms of our international standing,” he said, adding that it remains a “recruitment tool for extremists.” He blamed Congress for blocking his initial efforts to close the facility and promised to “go back at this.” Which raises the question, what exactly are Obama’s options for resolving this festering 12-year-old problem?

First, there are some steps he can take without Congress. Of the 166 detainees who remain at the prison (down from 270 when Obama took office), 86 have been cleared to be transferred to other countries by the administration. And while Congress has banned the transfer of those detainees, the latest National Defense Authorization Act gives Obama a loophole of sorts: the president can carry out the transfers if he gets the secretary of Defense to certify that doing so would be in the national security interest of the United States. (Some would be free once they arrived in another country; others could face charges there.)

Such a move would carry risks, of course: if any of these detainees later take up arms against the United States, it would be both a substantive and political disaster for the administration. But as CIA Director John Brennan has argued to his colleagues, we let people out of U.S. prisons every day at some risk; it’s a requirement of leadership.

There’s one additional complication with this course of action, though: among the 86 who have been cleared for transfer are 56 Yemenis, many of whom may have jihadi tendencies but none of whom have been charged with terrorism by the United States. In 2010, Obama placed a ban on their return to Yemen, a country with a raging al Qaeda insurgency that was teetering on the brink of becoming a failed state. The administration feared the weak Yemeni government would not be able to keep tabs on such a large number of potential extremists.

So Obama would have to reverse his previous ban—a move he would probably want to justify somehow. One way to do so would be to help the Yemenis develop a jihadi rehabilitation program along the lines of a Saudi initiative that has been highly successful.

Of the other detainees, some are slated for prosecution in military commissions. But the toughest hurdle for Obama involves those 46 detainees who, the administration has concluded, cannot be prosecuted, transferred, or released. In some cases they were tortured, making a trial impossible—or the government lacks sufficient evidence to prosecute them, even though the intelligence indicates they are dangerous. Obama had initially wanted to move these suspects to high-security prisons in the United States. But Congress blocked that idea. This means Obama will have to persuade Congress to change the law, something he professes to be willing to do with a renewed vigor. Still, it remains to be seen: if he was unable to get it done during his first term, how will he manage to do it now?

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