Guantanamo Bay Hunger Strike: What Can Obama Do With the Detainees?

Reacting to the ongoing hunger strike at the Guantanamo Bay prison camp, involving 100 of the 166 detainees, President Obama recently renewed his 2008 vow to close the prison (actually he just wanted to relocate it).

Yet before the White House has even put forward any new proposals for how Obama plans to carry out his new vow, Republicans in Congress have yet again promised to block him.

While another standoff with Congress may be likely, given that the situation of due process free abuse and indefinite detention at Guantanamo is entirely a creation of the U.S. government, it is incumbent upon the White House and Congress to work together to find a solution. And a real solution must involve an end to indefinite detention, releasing those against whom there are no charges or who have been cleared, and holding trials for those who are actually accused of crimes.

Republican opposition to closure of the prison largely centers around the belief that the detainees pose a threat to America and Americans — Senator Lindsay Graham(R-S.C.) described them as "hell-bent on our destruction and destroying our way of life" — and thus should not be allowed into the United States. Some Republicans seemed more willing to work with Obama on the issue if he proposes a new detention policy. So what could actually be done with the detainees if Guantanamo was to close?

Transfer them all to a U.S. prison

Despite Republican fears about having terrorist suspects in American prisons, Hayes Brown of Think Progress cites a 2009 report by the Center for American Progress which argues that Republican fears are misplaced. The report notes that there are "more than 200 international terrorists are securely locked away in American prisons, there has never been an attack on a prison holding any of these terrorists, and no one has ever escaped from a “supermax” prison."

Some argue that Obama could already be doing this regardless of Republican opposition. Noah Feldman, a professor of constitutional and international law at Harvard, suggests that the Obama administration could take the "legal ingenuity that it has applied in justifying indefinite detention and apply it instead to closing the island prison" by involving the courts to resolve the standoff between Congress and the White House. Eric Posner, professor at the University of Chicago Law School, also argues in Slate that under the National Defense Authorization Act of 2012 (NDAA), Obama could pave the way for the transfer of detainees to the U.S. by declaring an end to hostilities with Al-Qaeda.

Release them or put them on trial

Eighty-six of the detainees have already been cleared for transfer by an inter-agency task force including the Department of Justice and the Department of Homeland Security. Of the 86, 56 are from Yemen. The Yemeni government has recently requested the release of Yemeni nationals being held in detention at Guantanamo and promised to help facilitate the process. And although the Obama administration currently has a self imposed suspension on transfers to Yemen because of concerns about security there and the possibility of detainees joining militant groups once release, a recent report by the New America Foundation argues that U.S. fears that this will happen are vastly overblown. The remaining detainees should either be released or face prosecution if there is credible evidence against them. In 2008 the Center for American Progress published a five stage plan for how this could be done, including the creation of a rehabilitation and resettlement program in partnership with allied countries and international organizations for those being released and the gradual transfer of detainees to stand trial in U.S. courts.

Obviously the issue of Guantanamo and its detainees is a complex legal and political one and none of the above would necessarily be easy. But the U.S. government and Congress have an obligation to act, rather than just hide behind the claim of supposed threats to national security, to rectify a situation they created. And maybe a combination of "legal ingenuity" and "political will on the part of the president, realism on the part of Congress and trust in the nation's sizable counterterrorism measures" can bring about a result that restores the rights and dignity of the detainees.