116 | Towards the Closure of Guantanamo United States believes that the individual poses no threat, but a risk management decision. Detainees approved for transfer have been unanimously cleared by the Departments of Justice, Defense, State and Homeland Security, the Central Intelligence Agency, and the Federal Bureau of Investigation. 1. Challenges to detainees’ transfers 280. Since the opening of the detention center at Guantanamo in 2002, more than 640 individuals have been released or transferred to their countries of origin or third countries. 342 Of the 779 individuals detained at Guantanamo, almost 70% were transferred or released from U.S. custody prior to 2009. 343 As of January 2015, 27 countries from Europe, Asia, the Middle East, Africa and Latin America have reportedly resettled a total of 82 foreign Guantanamo detainees. 344 The IACHR notes with deep concern that, according to publicly available information, ten detainees were transferred to unknown locations between July 2003 and March 2004. 345 281. 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 to the United States, prohibited the use of funds to construct or modify U.S. prisons to house detainees from Guantanamo, and put in place onerous requirements on transferring any detainees to another country. The NDAA for fiscal years 2012 and 2013 kept all those restrictions in place. This legislation required a certification that was almost impossible to achieve. The Secretary of State had to certify, no later than 30 days before the transfer that the government of the receiving country met several requirements, such as that it had “taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, 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 a Military 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 to transfers, and this is reflected in the numbers. Before the first restrictions were enacted in 2011, the Obama administration reportedly transferred 67 prisoners, versus only 15 between January 2011 and December 2013. These transfers were arranged primarily due to exceptions to those restrictions; only two detainees, who 342 343 344 345 Submission of the Government of the United States to the Inter-American Commission on Human Rights with respect 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, Cape Verde, 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-countries The New York Times, The Guantanamo Docket. Organization of American States | OAS