(Washington, DC) – US President Barack Obama’s refusal to veto a defense spending bill restricting detainee transfers from Guantanamo undercuts his pledge to close the prison, Human Rights Watch said today. On January 2, 2013, Obama signed the 2013 National Defense Authorization Act (NDAA), even though his advisers had said they would recommend a veto if it contained detainee transfer restrictions.
“The administration blames Congress for making it harder to close
Guantanamo, yet for a second year President Obama has signed damaging
congressional restrictions into law,” said Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch. “The burden is on Obama to show he is serious about closing the prison.”
In a statement Obama made along with the authorization act, he
criticized Congress for renewing the restrictions he said were intended
to “foreclose” his ability to shut down Guantanamo.
“I continue to believe that operating the facility weakens our national
security by wasting resources, damaging our relationships with key
allies, and strengthening our enemies,” he wrote. However, he claimed
the need to sign the legislation, saying the demand for funding was “too
great to ignore.” Obama issued a similar statement when signing the
NDAA the previous year.
In fact, the NDAA authorizes funding for most Defense Department
operations, but it is not essential for the US armed forces to function,
Human Rights Watch said. It does not actually fund the Defense
Department, but authorizes the allocation of appropriated funds. If
Obama had vetoed the 2013 authorization act, last year’s NDAA
authorization would still have been in effect. Four of five presidents
preceding Obama vetoed a defense authorization act.
The US House of Representatives passed its version of the bill on May
18, and the Senate passed its version on December 4. The conference
committee of both chambers produced a reconciled version of the bill on
December 18, which the House approved on December 20 and the Senate on
The law extends for another year restrictions on the transfer of
detainees out of Guantanamo to their home countries or to third
countries for resettlement. The restrictions are not based on the
detainees’ conduct but on terrorist acts allegedly committed by former
detainees in the transfer countries. Since the restrictions were imposed
for 2012, the administration has not transferred a single detainee out
of Guantanamo to a country under certification, even if the person
already had been cleared for release. The only detainees to leave
Guantanamo last year did so under pre-existing exceptions to the
restrictions on transfers.
The authorization act also extends the prohibition on the use of
Defense Department funds to transfer detainees to the US, whether for
detention or trial, through September 30, 2013. If the administration
cannot transfer detainees to the US, the only forum available for trial
is the fundamentally flawed military commission system at Guantanamo.
Those military commissions have been marred by procedural
irregularities, the use of evidence obtained by coercion, inconsistent
application of ever-changing rules of evidence, inadequate defense
resources, and lack of public access. The government’s ability to use
military commissions for some charges has recently been called into
question in a federal appeals court decision, which overturned the
conviction of Salim Hamdan for material support for terrorism because it
was not a war crime at the time of the alleged conduct.
Though the transfer restrictions in the authorization act are not a
complete ban, they pose administrative hurdles, Human Rights Watch said.
To transfer a detainee to a country other than the US, the secretary of
defense must obtain certain guarantees from receiving countries on
detention and information-sharing, among other things, before Defense
Department funds can be used. The administration should press forward
with obtaining these certifications and use the coming months to work
with Congress to lift the ban on transfers to the US for trial, Human
Rights Watch said.
“Indefinite detention without trial at Guantanamo is illegal,
unsustainable, and against US national security interests, and it needs
to end,” Prasow said. “But the administration should not continue to
just blame Congress. President Obama should follow through on his
earlier commitments and make the effort to overcome the transfer