From:   Virginia Sloan, President, The Constitution Project

Date:    November 7, 2013

Re:       Support improved Guantanamo transfer provisions in 2014 Defense Authorization Act

I am writing to urge you to editorialize in support of provisions in the FY2014 National Defense Authorization Act reported out of the Senate Armed Services Committee (SASC bill) that would provide the Obama administration with important additional flexibility to close the Guantanamo Bay prison. As you may know, 164 detainees remain at Guantanamo, 84 of whom have long been cleared for transfer by our own national security and intelligence agencies. President Obama has repeatedly expressed his desire to close the prison, but Congressional restrictions have made that more difficult to achieve; according to some of the President's advisors, significantly so.

The defense authorization bill is considered "must pass" legislation that Congress takes up every year to reauthorize major defense programs and other defense-related spending. Since 2010, the bill has included a series of increasingly onerous and complex restrictions on transferring detainees out of Guantanamo. Under current law, no Guantanamo detainee can be brought to the U.S. for any purpose, and a cumbersome certification and waiver regime needlessly complicates transferring detainees to foreign countries. Those restrictions were ill-advised when first imposed. They are even less defensible now.

The Constitution Project, an organization that brings together legal and policy experts from across the political and ideological spectrum to create bipartisan consensus, strongly supports the improved Guantanamo transfer provisions in the SASC bill. A majority of TCP's Task Force on Detainee Treatment, which released its comprehensive report in April, recommended closing Guantanamo. All Task Force members agree that detainees who have been cleared for transfer should be transferred out of the prison as expeditiously as possible.

While we believe that the transfer restrictions should be removed altogether, the SASC bill provisions are a workable middle ground that would facilitate making substantial progress towards closing Guantanamo.  Specifically, the improved provisions would:

Replace the cumbersome certification and waiver regime for foreign transfers with a clear factor-based standard. Under current law, prior to transferring a detainee, the Defense Secretary must make a series of formal certifications designed to minimize the risk that the detainee will engage in terrorist activities after release. Through an additional formal process, the Secretary can waive the most onerous of those certification requirements, but must then comply with a substitute set of requirements. The proposal in the SASC bill would helpfully clarify and modify that needlessly complex process. Under the SASC bill provision, the Defense Secretary would be required to determine prior to transfer that a) steps have been taken (or will be) to substantially mitigate any risk of a detainee engaging in terrorist activities after release, and b) the transfer is in U.S. national security interests. In making those determinations, the Secretary must consider:  

• Assessments of the threat, if any, the detainee poses to U.S. security
• Prior confirmed cases of individuals released to the same country who later engaged in terrorist activity
• Any steps by the U.S. or the transfer country, or changed circumstances in the transfer country, that reduce the risk that an individual will engage in terrorist activity after release  
• Any transfer country assurances that it 1) maintains control of its detention facilities (if the individual is to be detained after release); and 2) has or will work to substantially mitigate the risk that the individual will engage in terrorist activity
• An assessment of whether the transfer country can and will meet the above assurances, including considering any past practices
• Cooperation between a detainee and U.S. intelligence and law enforcement authorities, as well as mechanisms to continue that cooperation after transfer 

Restore the Defense Secretary's complete discretion over certain foreign transfers. Current law does not require the Defense Secretary to certify a transfer that has been ordered by a court. The SASC provisions maintain that carve-out from the revised foreign transfer provisions and add two others. One is for detainees who, through the recently-launched periodic review process, are found not to pose a threat to U.S. national security. That makes sense; it would waste resources to require the Defense Secretary to conduct a comprehensive risk assessment on a detainee who has just been through one and was cleared. The other carve-out is for detainees who have been tried and either acquitted or, if convicted, have completed serving their sentences.

Permit transfers to the U.S. for trial and emergency medical care. The SASC bill permits transfers to the U.S. for detention and trial. Detainees who can be prosecuted in federal courts should be; our established federal judicial system has safely and effectively handled nearly 500 terrorism cases since 9/11. According to U.S. officials, at least one of those criminal defendants - Ahmed Warsame - has proved to be an "intelligence watershed." By contrast, operating in a new and uncertain environment, military commissions are moving at a glacial pace amidst a sea of controversy. Of the seven convictions secured in military commissions to date, two have been overturned by the D.C. Circuit Court of Appeals and the trial of the 9/11 perpetrators remains far off. Because those D.C. Circuit decisions narrowed military commissions' jurisdiction, federal courts may now be the only venue available for trying some detainees.

The SASC bill also authorizes temporary transfers to the U.S. for emergency or critical medical treatment that cannot be provided on base. Both international law and the Constitution require the U.S. to provide detainees in its custody with adequate medical care, which serves both our humanitarian and security interests. That obligation will become increasingly difficult - and costly - to satisfy without the flexibility to transfer to the U.S. aging detainees who present health problems that the Guantanamo medical staff is not equipped to handle.

In the midst of an ongoing budget crisis and with the impending drawdown of our troops in Afghanistan, now is the time to take the steps necessary to close a facility that costs our taxpayers $2.7 million per detainee annually and, according to many national security experts, makes us less safe. White House leadership is key, but Congress must also do its part.

On behalf of The Constitution Project, I strongly urge you to editorialize in support of the SASC bill Guantanamo transfer provisions. According to reports, the full Senate could begin consideration the SASC bill as early as next week. Now is the time to weigh in on these critical issues.  

If you need additional information or wish to speak to me, please do not hesitate to contact TCP's Director of Communications, Larry Akey, at (202)580-6922. Thank you.