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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents