THE OBAMA administration has been wrongly constrained by Congress from winding down the military prison at Guantanamo Bay, Cuba. But the rebuke it recently received from the International Committee of the Red Cross was entirely its own fault. Despite promising to set up a new system of reviews for foreign detainees still held at the facility, the administration had yet to hold a single proceeding. That means there is less due process at Guantanamo now than there was during the last years of the George W. Bush administration.
The previous administration, vilified for using Guantanamo to hold terrorism suspects captured abroad, eventually began holding annual reviews to determine if detainees still posed a threat. After conducting its own review of the prisoners, President Obama, who took office vowing to close Guantanamo within a year, signed an executive order in March 2011 establishing a new Periodic Review Board to review cases. There is a genuine need for such reviews: Of the 166 prisoners still at Guantanamo, somewhere between 40 and 60 will probably never be tried by a military commission. While some may never be judged as non-threatening, others are closer calls who deserve a thorough and impartial review.
Why has the board not begun work 21 months after Mr. Obama’s executive order? The main reason appears to be slow-rolling by the Pentagon bureaucracy. With some reason, officials have feared touching Guantanamo issues: Witness how Congress manhandled Eric H. Holder Jr.’s Justice Department after it proposed staging civilian trials for some detainees in New York — or the departure from office of White House counsel Greg Craig after he pushed for quick action to move prisoners out of Guantanamo.
Pentagon officials now say that the review board will start work early next year. But that still leaves President Obama with a considerable Guantanamo hangover for his second term. Though it is necessary to hold some of the prisoners, 86 remain in the prison despite having been cleared for transfer to their home countries. Last week congressional conferees approved language in the annual defense authorization act that will continue a ban on moving prisoners to the United States during 2013 and maintain onerous restrictions on transfers to other nations.
If Mr. Obama is serious about closing Guantanamo, he will veto the bill, as the administration has threatened that he will do. But as we have previously said, closing Guantanamo would be a largely symbolic act; more important is providing justice, or at least due process, to the prisoners who remain. The administration could begin certifying some of them for transfer even under the strictures established by Congress; it could negotiate with governments such as Tunisia and Saudi Arabia about creating conditions for the return of other detainees. The biggest single problem is a group of 56 Yemenis cleared for return, but even in that difficult case the administration could begin working with Yemen on creating an appropriate detention facility.
Resolving Guantanamo’s problems is a matter of political will. So far Mr. Obama has failed to muster it.