The promise that the military detention center at Guantanamo Bay, Cuba would be closed is continuing to remain just a promise.
President Obama signed a defense bill on January 2nd that stresses stronger restrictions on the movement and transfer of detainees out of the center. The administration claimed he would veto the National Defense Authorization Act, but signed the bill into law anyway. The new defense legislation bans the transfer of Guantanamo detainees to the United States for any reason. This new ban includes barring detainees from entering the United States even to merely attend trials in federal court.
The defense secretary also has a new set of guidelines and conditions that must be met before detainees can be returned to his or her country or a third party country.
The transfer process can only begin again with the Pentagon’s certification that is now required by Congress. However, this is unlikely to happen because of the political backlash that would be received. These new provisions continue to halt the justice system and detain individuals for unwarranted amounts of time. Eleven years is long enough to see that Guantanamo’s existence is destroying the way in which justice is enacted in the United States and tarnishing the importance of human rights.
The more subtle effect of the new legislation is that it will reduce the number of prosecutions in military commissions at Guantanamo. This reduction will happen because it will be extremely difficult for the government to reach plea agreements with the defendants.
Detainees are more than willing to make deals with military prosecutors in exchange for a release date. In fact, five of the seven completed prosecutions have happened because of plea agreements. Before the defense bill’s provisions on Guantanamo Bay, the government could transfer a detainee who served his or her time and pleaded guilty without the burden of the extreme congressional reporting requirements.
The new provisions also require the defense secretary to guarantee that detainees who are transferred will not be a threat in the future. The Pentagon and the secretary of defense have not given this clearance to any detainee because it is impossible to make that guarantee.
The defense bill’s effect on the military commissions system has not gone unnoticed, either. Laura Pitter, the counter-terrorism adviser for the Human Rights Watch notes that, “The attacks of 9/11 were a great tragedy for all Americans and without doubt a crime that must be prosecuted. But it's disturbing to watch that horrific crime so dramatically change the U.S. system of justice - a source of pride for so many Americans. It's more disturbing given that it's not necessary or prudent. Federal courts have completed hundreds of terrorism cases since 9/11, while the commissions have dispensed with a mere seven."
It seems that even President Obama, who signed the bill into law, senses its faulty ineffectiveness. In a signing statement that accompanied the bill, Obama asserted that he has the constitutional right to override any provisions that infringe upon his rights as the executive. The same idealism of the initial promise remains, but without any action.
President Obama still insists that national security is actually threatened by the existence of Guantanamo. Even with his insisting, the inability to close Guantanamo is major failure for the Obama Administration. Signing this bill clearly demonstrated that he is not going to be dedicated to closing the detention center and restoring human rights.
Obama’s critics in the human rights community said that he should have vetoed the bill and that by signing it, he was further indicating that his administration has no interest in protecting the justice system or those who partake in it. The gravity of this situation is expressed by Anthony Romero from the ACLU, who said "President Obama has utterly failed the first test of his second term, even before Inauguration Day…He also has jeopardized his ability to close Guantanamo during his presidency.”
The greatest proof of failure on the human rights front is the fact that there are over 150 detainees still at Guantanamo.