Obama Makes Last-Minute Move to Get Detainees Out of Gitmo

The Obama White House transfers its last detainees from Guantánamo in a dramatic midnight-hour move before President Trump throws away the key.
Molly O’Toole

Every minute brings Donald Trump closer to putting his hand on the Lincoln Bible, and a group of 41 men closer to a lifetime of internment at the U.S. military detention center in Guantánamo Bay, Cuba.

But lawyers and Obama administration officials are working down to the wire to get remaining detainees out of Guantánamo before Trump throws away the key, potentially for good. With less than 24-hours remaining before President-elect Trump becomes president, Foreign Policy has learned that the White House has made four more transfers, the last of Obama’s administration. The Pentagon announced their names and destinations — one to Saudi Arabia, and three to the United Arab Emirates — later on Thursday evening.

In a letter on his last full day in office, President Obama urged House Speaker Paul Ryan one last time to close the detention center.

“If this were easy, we would have closed Guantánamo years ago,” Obama wrote. “But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to bring it to a responsible end.”

The White House publicly acknowledged for the first time this week what has long been the grim reality for the legal teams representing the detainees and the administration officials charged with their fate: Obama would not be able to make good on his campaign promise and executive order to close Guantánamo, issued almost eight years ago to the day.

In defiance of Trump’s Twitter edict not to make any more transfers, the Pentagon sent 10 detainees to Oman on Monday, and the last four midnight-hour moves come just hours from the moment Trump takes the oath of office on Friday. The 10 men transferred on Monday, as well as five others, have been cleared by six national security agencies as no longer posing a threat to the United States, and several of them, the government has admitted, were cases of mistaken identity.

Defense Secretary Ashton Carter did not sign off on the transfers of several of the remaining cleared detainees in time for the legally-required 30-day congressional notification. Legal teams for two detainees on this list — Abdul Latif Nasir, a Moroccan, and Sufyian Barhoumi, an Algerian — filed emergency motions with federal courts to grant their repatriation before Friday. But the Obama administration opposed the requests, despite judicial orders to prepare the detainees to be moved immediately in case of a favorable ruling. On Wednesday night, the court ruled against Barhoumi, and on Thursday afternoon, the Moroccan’s request was shot down.

Shayana Kadidal of the Center for Constitutional Rights, which still has four clients remaining at Guantánamo, slammed the Obama White House for saying it wanted to close the facility but then stating unequivocally it wouldn’t follow the ruling if the judges ordered the already-cleared detainees to be released.

When Trump takes the oath on Friday, Kadidal will be in the air on his way to Guantánamo, where he’ll break the news to Barhoumi.

“I’m actually going to see him now, unfortunately, since he’ll still be there,” Kadidal told Foreign Policy Thursday, “as the photos get switched from Obama to the orange-colored buffoon.”

Barhoumi was initially charged with war crimes but they were later dismissed. Another of CCR’s clients, Ghaleb al Bihani, a Yemeni, was transferred with the group of 10 on Monday, but his older brother, Tawfiq, who has also been cleared, was left behind.

Lt. Col. Sterling Thomas, a military lawyer defending several Guantanamo detainees, said they’ve tried to keep their expectations low because, “It’s just too heartbreaking.” His client, Abdul Zahir, was picked up in 2002 because the “government mistook him for someone else who shared a nickname.” Zahir was surprised by the election result, telling Thomas, “‘Americans and detainees in Guantanamo now both have to figure out the way forward.’”

On Monday night, the Pentagon still hadn’t informed Thomas whether Zahir was in the group that was transferred that day. Zahir is now Oman.

Of the 41 men who remain as of Thursday, only 10 have been charged with war crimes. The vast majority have been detained for more than a decade, and none were captured by the U.S. military.

If the rest do not make it onto a military plane by Friday, lawyers say, they will likely die at Guantánamo along with the 26 other men known as “forever prisoners” — including the alleged plotters of the 9/11 attacks — the U.S. has determined will be detained indefinitely. The 26 are eligible for their cases to be reviewed periodically.

Many of the detainees are deeply involved in their own defense, and they are aware that Trump’s victory has raised the stakes, according to legal teams who represent them. In recent conversations they’ve expressed their concern if they don’t make it out before Trump enters the Oval Office, they’ll be stuck.

Trump made his own campaign pledges to “load [Guantánamo] up with some really bad dudes,” and “bring back a hell of a lot worse than waterboarding.” While he’s since toned down his vows to return to illegal government torture — at the behest of retired Gen. James Mattis, expected to be confirmed as defense secretary on Friday, who told him torture wasn’t effective — he hasn’t ruled it out. He’s never backed off his plan to keep Guantánamo open, and has doubled down on expanding it, even suggesting he may try U.S. citizens in military commissions there.

Trump spokesman Sean Spicer said his team is planning executive orders for Friday and Monday, including his own, as well as rescinding Obama’s prior dictates. In his “100 Day Action Plan” the New York businessman vowed to do so.

Spicer declined to comment as to whether Trump will issue his own orders for Guantánamo, but given his strong public stances, he is likely to move early to undo the four executive orders on U.S. detention and interrogation policy that Obama issued on his first day in office.

One promise Obama did keep was not to add a single detainee to the population at Guantánamo, relying largely on the federal justice system and foreign partners to deal with the handful of terrorist suspects captured on global battlefields since 2009. For the rest: lethal drone strikes, according to analysts.

Barred by both Republicans and Democrats in Congress from closing Guantánamo and moving the remaining “worst of the worst” detainees to a maximum-security facility on U.S. soil, Obama administration officials have steadily chipped away at the population through the transfers to third-party countries, ultimately moving 196 of the roughly 800 once held at Guantánamo.

Trump has echoed lawmakers’ concerns that Obama has been releasing dangerous terrorists who could return to the fight alongside Islamic State. But in contrast to a lengthy process that Obama’s own supporters and officials have criticized as unnecessarily onerous, President George W. Bush released more than 500 detainees, with few measures in place to protect against terrorist recidivism. Most of the transferred detainees that the Intelligence Community assesses have returned to terrorism were released under Bush, with 14.1 percent of detainees transferred before Obama’s inauguration being suspected of returning to terrorism, and only 6.8 percent of detainees released after, according to the latest report from the Director of National Intelligence.

The Obama administration, as well as supporters of closing Guantánamo, such as Sen. John McCain, (R-Ariz.), also have argued the cost of maintaining it is unjustifiable. The operational cost last year was approximately $445 million, according to the White House; with the president’s last transfers bringing the total to 41, that’s more than $10 million on average per detainee.

The government also pays for lawyers to defend detainees, including those being charged as co-conspirators in the 9/11 attacks, whose cases before military commissions are expected to stretch on for years.

James Connell, who serves as expert counsel for one of these “high-value” detainees, Anmar al Baluchi, said they joke about Trump — ”’What are we going to do with this guy?” But Baluchi is also concerned about the incoming president’s broader policies toward Muslims, in particular Syrian refugees. Under Trump, Connell anticipates every Guantánamo detainee left could become a “forever prisoner.” “They’ll stay there until they die.”

Trump may similarly find himself as confounded as Obama by the unanswered questions of the war on terrorism, Connell predicted.

“Obama hoped it would go away,” he said. “But it won’t.”

This is a developing story and it has been updated.

Photo credit: John Moore / Staff