The president also said he would appoint a senior official who will work at the State Department and the Pentagon to shepherd the process through a sometimes reluctant bureaucracy.
None of the steps Obama announced, however, will alter the fundamental reality that for his plan to work, Congress must be persuaded to allow detainees into the United States for prosecution and possibly indefinite detention.
Of the 166 detainees at Guantanamo, up to 86 prisoners, more than half of them from Yemen, could be transferred abroad. Some of the others, however, cannot be brought before a federal court or a military tribunal because the evidence against them does not meet judicial standards or is compromised by torture.
To begin the process of emptying the facility in Cuba, the secretary of defense will have to certify to Congress in each case that a transfer is in the national security interests of the United States and that the detainee cannot threaten the United States, among other requirements. Congress had not received any notification by Thursday, according to a congressional staffer.
The certification requirement remains an onerous, if not insurmountable, hurdle, according to Pentagon officials. To ease the process, Obama said Thursday that he would again ask Congress to lift all restrictions on the transfer of detainees.
“There is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened,” Obama said to the first sustained applause he received in a speech at the National Defense University. “These restrictions make no sense.”
The desire to close Guantanamo has been given fresh impetus by a mass hunger strike there, and as Obama addressed the issue he was heckled by a woman who shouted that “keeping people in indefinite detention in Guantanamo is making us less safe. Abide by the rule of law.”
Obama went off-script to say that the protester, Medea Benjamin, the co-founder of the activist group Code Pink, was worth listening to, because while he didn’t agree with much of what she shouted, Guantanamo was an issue worth being passionate about.
“To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries,” Obama said. “Where appropriate, we will bring terrorists to justice in our courts and military justice system. ”
There appeared to be some willingness on Capitol Hill to engage with the administration, based on the immediate reaction to Obama’s speech. Rep. Howard P. “Buck” McKeon (R-Calif.), the chairman of the House Armed Services Committee, said he was “open to a proposal from the president” and said he knows that “Guantanamo is an imperfect solution.”
To close Guantanamo, “I need to know what the president intends to do with those terrorist detainees who are too dangerous to release but cannot be tried,” McKeon said. “How he will ensure terrorists transferred overseas do not return to the fight, and what he will do with terrorists we will capture in the future as well as those dangerous terrorists still held in Afghanistan?”
Sen. John McCain (R-Ariz.) said he and his colleagues were willing to work with the president, but said they needed him to come up with a “cohesive plan.”
Obama said he would ask the Defense Department to identify a site in the United States to hold prosecutions by military commissions. That site could be used to prosecute a number of detainees held at Guantanamo, where two trials, including one against the alleged Sept. 11, 2001, plotters, are already underway. The administration also has been considering transferring some of the 50 or so non-Afghans captured and held in Afghanistan for trials by military commissions, according to a U.S. official.
Holding trials before military commissions would also require a prison facility for those facing trial and those who are convicted. In Obama’s first term, the administration tried to acquire a state prison in Illinois for this purpose but faced opposition from Congress.
Human rights groups welcomed Obama’s reengagement on the issue but were concerned about his willingness to continue using military trials.
“The president’s plan to move detainees into the United States, including for prosecution before discredited military commissions, is not the answer,” said Kenneth Roth, executive director of Human Rights Watch. “The detainees should either be prosecuted in U.S. civilian courts or released.”
The Yemeni government welcomed Obama’s remarks and said it “will work with the United States to take all necessary steps to ensure the safe return of its detainees and will continue working towards their gradual rehabilitation and integration back into society.”
In his speech, Obama glided over the toughest subset of detainees among the 166 men held at Guantanamo: those who are deemed too dangerous to release but who cannot be charged.
In 2009, the Obama administration said there were 48 Guantanamo detainees who fell into this category and would be held indefinitely without trial. That number may have increased, because the federal courts have ruled that military prosecutors cannot use the charge of material support. That decision has deprived the government of the ability to charge a significant number of detainees.
One U.S. official, who spoke on the condition of anonymity to discuss potential legal proceedings, said there are viable military cases against at most a dozen Guantanamo detainees, including the six already on trial.
In his speech, Obama acknowledged the difficulty of the problem, but only indirectly.
“I am confident that this legacy problem can be resolved,” he said, “consistent with our commitment to the rule of law.”