On Gitmo, Stick with the House

Approximately one year ago, President Obama released five senior Taliban leaders from detention at Guantanamo Bay in exchange for Army Sgt. Bowe Bergdahl, then held by the Haqqani Network in Afghanistan following his capture under then-unclear circumstances (the Army has since charged Bergdahl with desertion). The five Taliban leaders were transferred to the custody of Qatar, which at the time promised to restrict their movements for one year. That year-long period, which includes a ban on travel outside Qatar, is set to expire at the end of this month.

Mindful that the agreement expires at the end of May, the Obama administration initiated discussions with Qatar in late April to extend the monitoring arrangements of these former Gitmo detainees, though reporting at the time indicated it was unclear whether Qatar would agree to extending or increasing the security restrictions in place.

The winding down of this already dubious arrangement with Qatar – possibly without any extension – is an ironic backdrop against which to have the Senate Armed Services Committee offering to help President Obama close down detention/interrogation operations at Guantanamo Bay.

In the coming weeks, the full Senate will consider the FY 2016 National Defense Authorization Act (NDAA), which was just passed out of the Committee late last week. The Committee’s version of that legislation contains provisions that enable President Obama to shut down detention/interrogation operations at Gitmo, provided that Congress approves of the president’s plan. Among other requirements, the proposal 1) keeps in place current prohibitions on the transfer of detainees to the U.S., until the president submits a plan to Congress and Congress approves it; 2) prohibits the transfer of a detainee to a foreign country unless the Secretary of Defense provides Congress with written certification of confidence in security measures, at least thirty days prior to transfer; 3) prohibits transfers to a foreign country in cases where there is a confirmed case of recidivism of a detainee previously transferred to that country – a prohibition that the Secretary of Defense can waive; 4) requires a plan from the Secretary of Defense detailing a case-by-case disposition of remaining Gitmo detainees, outlining legal challenges associated with bringing them to the U.S.; 5) limits the rights that can be claimed by detainees on U.S. soil; and 6) requires that Obama’s plan address how intelligence will be gathered by future unlawful enemy combatants.

The House’s NDAA, on the other hand, keeps in place current prohibitions on transfers of Gitmo detainees to the U.S. The legislation also places further restrictions on transfers to foreign countries, such as prohibiting the transfer of detainees to a “combat zone” as defined by IRS regulations, though it still permits the administration to transfer detainees to areas not designated as “combat zones” assuming that the Secretary of Defense certifies to congress thirty days prior to transfer that certain security requirements have been met. That legislation passed the full chamber last week.

On balance, the House’s Gitmo provisions, though not perfect, are better for national security than what has come out of the Senate Armed Services Committee. The Senate Armed Services Committee version places faith in the Obama administration to come up with a workable plan, and even opens the door to transfer of detainees to the United States if the Senate approves of such a plan. The House version places no such faith in this administration and opens no such door, nor should it. While the Committee seems to be operating on the premise that national security requires closing Gitmo, and that what is needed is a viable and responsible path to doing so, the House is rightfully operating from the premise that national security requires keeping Gitmo open, and keeping the detainees exactly where they are.

The Obama administration’s scramble to persuade Qatar to keep security restrictions in place should serve as the latest warning that we can’t take chances with transferring detainees out of Gitmo, whether to the custody of foreign governments or to the jurisdiction of at least some left-leaning federal judges open to being persuaded that a detainee’s physical presence in the United States entitles him to a greater range of constitutional rights. The House’s Gitmo legislation comes closer than the Senate Armed Service Committee’s to recognizing this reality – it’s now up to the full Senate, and possibly the NDAA conference committee down the road, to right the ship.