Towards the Closure of Guantanamo

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Chapter 5 Towards the Closure of Guantanamo: International Legal Obligations | 115with regard to the Transfer or Release of Detaineesthat the Uighurs had subsequently been resettled. 338 Kiyemba, therefore, deniedfederal courts the authority to provide a remedy to the detainees it ruled were beingunlawfully detained at Guantanamo, undermining the decision of the Supreme Courtin Boumediene. It should be noted in this regard that, since Boumediene, theSupreme Court has not issued a decision on habeas regarding Guantanamodetainees.276. Third, the Department of Defense has the authority to release Guantanamodetainees, as the Department responsible for their detention. Following ExecutiveOrder 13492, the Department of Defense conducted an interagency review of thestatus of each detainee and concluded that 126 of the 240 individuals detained atthat time were approved for transfer. 339 However, about half of those cleared werenot transferred by December 2010, and now need to meet the requirementsimposed by the NDAA.277. Notwithstanding these obstacles, the Executive branch has taken some steps inrecent years to accomplish its goal of closing Guantanamo. Following his May 23,2013, speech at the National Defense University, President Obama appointed twoSpecial Envoys at the Departments of State and Defense, respectively, to pursue thetransfer of detainees designated for transfer. He also lifted the moratorium ondetainee transfers to Yemen, and commenced the Periodic Review Board (PRB)process mandated in Executive Order 13567. In addition, since that date and as ofJanuary 23, 2015, 44 detainees have been repatriated or transferred to thirdcountries.278. In this chapter, the IACHR will make an assessment of the current situation of thethree categories of prisoners held at Guantanamo Bay: detainees cleared fortransfer; detainees facing criminal charges before military commissions; anddetainees designated for continued detention (or who had been charged but arecurrently not considered for prosecution).A. Detainees cleared for transfer279. The U.S. Government uses the term “release” to mean release from confinementwithout the need for continuing security measures in the receiving country, whilethe term “transfer” is used to mean release from confinement subject to appropriatesecurity measures. 340 A detainee is deemed eligible for transfer “if any threat heposes could be sufficiently mitigated through feasible and appropriate securitymeasures.” 341 Therefore, an approval for transfer is not a determination that the338339340341Kiyemba v. Obama, 563 U.S. (2011).Final Report, Guantanamo Review Task Force, January 22, 2010. Available at:http://www.justice.gov/sites/default/files/ag/legacy/2010/06/02/guantanamo-review-final-report.pdfFinal Report, Guantanamo Review Task Force, January 22, 2010, p. 3.Final Report, Guantanamo Review Task Force, January 22, 2010, p. 7.Inter-American Commission on Human Rights | IACHR
116 | Towards the Closure of GuantanamoUnited States believes that the individual poses no threat, but a risk managementdecision. Detainees approved for transfer have been unanimously cleared by theDepartments of Justice, Defense, State and Homeland Security, the CentralIntelligence Agency, and the Federal Bureau of Investigation.1. Challenges to detainees’ transfers280. Since the opening of the detention center at Guantanamo in 2002, more than 640individuals have been released or transferred to their countries of origin or thirdcountries. 342 Of the 779 individuals detained at Guantanamo, almost 70% weretransferred or released from U.S. custody prior to 2009. 343 As of January 2015, 27countries from Europe, Asia, the Middle East, Africa and Latin America havereportedly resettled a total of 82 foreign Guantanamo detainees. 344 The IACHRnotes with deep concern that, according to publicly available information, tendetainees were transferred to unknown locations between July 2003 and March2004. 345281. In December 2010 the U.S. Congress passed the National Defense Authorization Act(NDAA) for fiscal year 2011 which barred any spending on transferring detainees tothe United States, prohibited the use of funds to construct or modify U.S. prisons tohouse detainees from Guantanamo, and put in place onerous requirements ontransferring any detainees to another country. The NDAA for fiscal years 2012 and2013 kept all those restrictions in place. This legislation required a certificationthat was almost impossible to achieve. The Secretary of State had to certify, no laterthan 30 days before the transfer that the government of the receiving country metseveral requirements, such as that it had “taken or agreed to take effective actionsto ensure that the individual cannot take action to threaten the United States, itscitizens, or its allies in the future.” The statute had two exceptions to certification:when there was a court order or a pre-trial agreement that had been entered in aMilitary Commission (the latter was removed from the NDAA for fiscal year 2013).As will be addressed below, the NDAA also contemplated a national security waiver.282. Transfer restrictions imposed by Congress have been a significant obstacle totransfers, and this is reflected in the numbers. Before the first restrictions wereenacted in 2011, the Obama administration reportedly transferred 67 prisoners,versus only 15 between January 2011 and December 2013. These transfers werearranged primarily due to exceptions to those restrictions; only two detainees, who342343344345Submission of the Government of the United States to the Inter-American Commission on Human Rights withrespect to the Draft Report on the Closure of Guantanamo, OEA/Ser.L/V.II.Doc. 30 January 2015, March 30,2015, p. 4.Final Report, Guantanamo Review Task Force, January 22, 2010, p. 1.Those countries are Afghanistan, Albania, Belgium, Bermuda, Bosnia and Herzegovina, Britain, Bulgaria, CapeVerde, El Salvador, Estonia, France, Georgia, Germany, Hungary, Ireland, Italy, Kazakhstan, Latvia, Oman,Palau, Portugal, Qatar, Saudi Arabia, Slovakia, Spain, Switzerland and Uruguay. Source: The New York Times,The Guantanamo Docket. Available at: http://projects.nytimes.com/guantanamo/transfer-countriesThe New York Times, The Guantanamo Docket.Organization of American States | OAS
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INTER-AMERICAN COMMISSION ON HUMAN
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TABLE OF CONTENTSEXECUTIVE SUMMARY
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EXECUTIVE SUMMARY
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CHAPTER 1INTRODUCTION
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CHAPTER 2EVOLUTION OF THE IACHRINIT
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CHAPTER 3CONDITIONS OF DETENTION
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Towards the Closure of Guantanamo

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