Coalition: Oppose H.R. 401 Barring Transfers out of Guantanamo

The undersigned civil liberties, human rights, national security, and religious
organizations write to urge you to oppose H.R. 401 introduced by Representative
Walorski barring transfers out of Guantanamo. The bill would impose an effective twoyear
ban on all transfers, anywhere—even when U.S. military and intelligence agencies
agree that a detainee is cleared for transfer—barring a court order. It would also
replace responsible bipartisan foreign transfer provisions in the National Defense
Authorization Act (NDAA) with restrictive certification requirements that would
needlessly bind the hands of US national security officials. Taken together, these
measures would effectively sustain detention operations at Guantanamo Bay for the
foreseeable future, furthering inhumanely the continued detention of men cleared for
transfer, squandering scarce resources, and—according to national security officials—
making us less safe.

Transfer Moratoria

By imposing a two-year moratorium on all transfers out of Guantanamo, H.R. 401 would
put an immediate halt to the recent responsible progress toward closing the facility. In
the last several months defense, intelligence, and diplomatic officials have secured the
transfer of 27 men from the island prison, shrinking the population by almost twenty
percent. Each of these transfers was conducted based on a finding by an interagency
process among national security agencies—conducted either in 2009 as part of the
Guantanamo Detainee Review Task Force process or more recently as part of the
detainee’s Periodic Review Board (PRB) hearing—that the detainee in question did not
represent a security threat to the United States; an updated assessment immediately
prior to transfer; a determination by the Secretary of Defense that any risk of the
individual reengaging upon transfer has been “substantially mitigate[d]”; and an
assessment by the Secretary of Defense that the host country in question has the
capacity and willingness to meet security assurances by that country prior to transfer.
The bill’s moratorium on transfers anywhere would needlessly halt the fastidious efforts
of government officials working to transfer those cleared men and to ultimately close the
island prison. Moreover, the moratorium would represent yet another injustice for the 56
men currently at the facility who are cleared for transfer, many among them having been
cleared as early as the Bush administration. Congress should encourage—not block—
their transfer.

The bill’s two-year block on all transfers to Yemen—while redundant given the universal
ban on transfers the bill proposes—is inappropriate. Principal Deputy Under Secretary
of Defense Brian McKeon stated during his recent testimony before the Senate Armed
Services Committee that, given recent events, the administration is not even currently
seeking transfers to the country. Congress should not be in the business of micromanaging these decisions and is ill-equipped to do so. Each transfer decision
involves unique considerations and should be made on a case-by-case basis by those
with the relevant knowledge and expertise.

Reinstatement of Restrictive Transfer Requirements

Additionally, the bill would reinstate a series of restrictive transfer certification
requirements very similar to those included in the FY 2013 NDAA. These provisions
reject the bipartisan majority position on transfer requirements represented in the
current NDAA and that of FY 2014 and needlessly bind the hands of the national
security community.

The current NDAA overseas transfer restrictions reflect the will of a bipartisan majority
in Congress. In fact, the Senate rejected with a 43-55 vote in the fall of 2013 an
amendment that would have replaced the Senate provisions with more restrictive
language. The House-Senate conference committee on the NDAA accepted the
restrictions, and President Obama signed the NDAA. Reflected in current law, the
provisions help facilitate an end to indefinite detention at Guantanamo Bay by putting in
place factor-based standards for transfer designed to simultaneously allow flexibility and
mitigate risks.

Congress passed the NDAA with these more flexible provisions in place to address the
harm caused by unwarranted hurdles to overseas transfers of detainees who were
never charged with a crime. In fact, almost half of the current 122 Guantanamo
detainees were cleared for transfer by national security and intelligence agencies in
2010. Of the total 779 men detained there over the course of the last twelve years, only
15 have been charged or convicted of a criminal offense. In 2013, the last time that
certain of the restrictions proposed in the H.R. 401 were in place, only 11 detainees
were transferred from the facility.

In total, the bill’s provisions will only further the injustice of indefinite detention at
Guantanamo Bay for the foreseeable future, promoting with it the concomitant costs of
detention operations at the facility and what top U.S. officials have characterized as the
security risks associated with the facility’s continued existence.

Furthering the Practice of Indefinite Detention

Even before consideration of this legislation, media reports in recent years made clear
the bleak future of detainees still held at the facility. Lt. General John F. Kelly, who as
head of U.S. Southern Command ultimately oversees the prison, testified to Congress
in March of 2013 that detainees at the prison – most never accused of a crime – had
been “devastated” by the government’s failure to execute plans to shutter the detention
facility. The hunger strike fed by this devastation has resulted in the forced feeding of
scores of detainees and continues to this day. Passage of the bill currently under
consideration would surely bring morale at the facility to a more profound low,
particularly among the 56 men already cleared for transfer from the facility. The human
costs of the bill’s proposed course of action are simply too great.

Sustaining the Unsustainable Expense of Prison Operations at Guantanamo
The fiscal costs, too, are significant. According to publically available records, detention
costs per detainee are currently $3.7 million per year. That represents more than $200
million per year just to house the 56 men who have been cleared for transfer from the
facility since 2010. Compare that to just $1.84 million it would cost to house the same
number of detainees in a U.S. federal prison for the same period. To put the current
cost of Guantanamo in perspective, consider that the cost of housing just the detainees
already cleared for transfer would cover more than half of the entire military's 2013 body
armor budget. The cost associated with detaining even fewer detainees—just 28—could
have fully funded the Veteran's Employment Program in 2014, which assists veterans
during their transition to civilian life. With so many competing priorities, there is little
justification for the continued expense of indefinite detention at Guantanamo.

Undercutting U.S. National Security Interests

Moreover, top U.S. officials, including in the Bush administration, have emphasized that
keeping Guantanamo open is counterproductive to U.S. national security. National
security leaders on both sides of the aisle agree that detentions at Guantanamo serve
as a powerful propaganda weapon against the United States. Former President George
W. Bush; former Secretaries of State Hillary Clinton, Condoleezza Rice, and Colin
Powell; former Secretaries of Defense Robert Gates and Leon Panetta; former National
Security Advisor James Jones; General Charles C. Krulak (ret.), former Commandant of
the Marine Corps; General Joseph P. Hoar (ret.), former CENTCOM commander;
former CJCS Admiral Mike Mullen; and Major General Michael Lehnert (ret.), who set
up the prison, all support closing the detention facility.

Closing Guantanamo is good human rights policy, good fiscal policy, and—according to
military and intelligence experts—good national security policy. We urge you to oppose
any transfer provisions more restrictive than the bipartisan Guantanamo overseas
transfer provisions in existing law and to support ongoing efforts to responsibly close the
facility consistent with our commitments to human rights and national security. We urge
you to reject H.R. 401.


American Civil Liberties Union
Amnesty International USA
Appeal for Justice
The Center for Constitutional Rights
The Center for Victims of Torture
The Constitution Project
Council on American-Islamic Relations
Defending Dissent Foundation
Friends Committee on National Legislation
Human Rights First
National Association of Criminal Defense Lawyers
National Religious Campaign Against Torture
National Security Network
PEN American Center
Physicians for Human Rights
Win Without War


Last modified 

June 1, 2015