Executive Orders: Barack Obama and Guantanamo Bay
On January 22, President Barack Obama signed an executive order announcing the closure of the Guantanamo Bay detention camp within a year. He also signed a prohibition on using torture and other illegal coercive techniques, such as waterboarding, during interrogations and detentions, and requiring the Army field manual to be used as a guide. But the detention camp remains open to this day. The text of Executive Order 13492 reads in part as follows:
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.
(b) Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantánamo should precede the closure of the detention facilities at Guantánamo.
(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.
(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo.
(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.
(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.
Sec. 3 Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
As mentioned previously, the detention facilities were never closed. During his 2008 presidential campaign, candidate Obama had promised to close down the prison in 2009. After being elected, he repeated his campaign promise on 60 Minutes and the ABC program This Week. On January 22, 2009, Obama stated that he had ordered the government to suspend prosecutions of Guantánamo Bay detainees for 120 days to review all the detainees' cases to determine whether and how each detainee should be prosecuted and he Obama signed the executive order quoted above, stating that Guantánamo Detention Camp would be closed within the year.
Incoming officials of his administration discovered that there were no comprehensive files concerning many of the detainees, and so assembling the available evidence would take much longer than expected. In May, Obama announced that the prosecutions would be revived. But these plans met a roadblock on May 20, 2009, when the United States Senate passed an amendment to the Supplemental Appropriations Act of 2009 by a 90–6 vote in which they blocked funds needed for the transfer or release of prisoners held at the Guantánamo Bay detention camp.
Later that year, in November 2009, President Obama admitted that the "specific deadline" he had set for closure of the Guantánamo Bay camp would be "missed." He was still optimistic that the camp would probably be closed in 2010, but did not set a specific deadline.
Earlier in the summer of 2009, the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, and the Standish Maximum Correctional Facility in Standish, Michigan, were both considered as potential sites for transfers of over 220 prisoners. Kansas public officials, including both of its senators and governor, objected to transferring prisoners to the former, while those in Standish supported the move to the latter facility.
On December 15, 2009 President Obama issued a presidential memorandum formally closing the detention center and ordering the transfer of prisoners to the Thomson Correctional Center, Thomson, Illinois, but by 2012 this plan was abandoned. Attorney General Eric Holder said in a letter, "I have committed that no Guantanamo detainees will be transferred to Thomson. As you know, any such transfer would violate express legal statutory prohibitions."
The Guantanamo Review Task Force issued its final report on January 22, 2010, and the report was released on May 28, 2010. The report recommended releasing 126 current detainees to their homes or to a third country, 36 be prosecuted in either federal court or a military commission, and 48 be held indefinitely under the laws of war. In addition, 30 Yemenis were approved for release if security conditions in their home country improved.
On January 7, 2011, President Obama signed the 2011 Defense Authorization Bill which contains provisions that placed restrictions on the transfer of Guantánamo prisoners to the mainland or to other foreign countries. This law prohibits the use of funds to "modify or construct facilities in the United States to house detainees transferred from" Guantánamo Bay. But Obama expressed his strong objections to these clauses. Obama signed the 2011 Defense Authorization Bill, but promised that his administration would "work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.:
On March 7, 2011, Obama ordered the resumption of military trials, conducted by military officers, with a military judge presiding, of terror suspects detained at Guantánamo Bay. He signed executive order 13567 that requires a review of detainees' status "within a year and every four years after that to determine whether they remain a threat".
On December 12, 2011, The New York Times published an op-ed written by retired United States Marine Corps Generals Charles C. Krulak and Joseph P. Hoar, arguing that the provision of the National Defense Authorization Act for Fiscal Year 2012 which extended a ban on transfers from Guantánamo, would bolster Al Qaeda's recruiting efforts and make it "nearly impossible" to transfer 88 men (of the 171 held there) who had been cleared for release.
In November of 2012, the Senate voted 54–41 to prevent detainees from being transferred to the US. A new defense authorization bill called the National Defense Authorization Act for fiscal 2014 relaxed restrictions on transferring detainees from the U.S. prison at Guantanamo Bay, Cuba, to the custody of foreign governments. In his 2015 State of the Union address, Obama stated Guantánamo Bay "is not who we are" and that it was "time to close Gitmo". On November 4, 2015, Obama stated that he was preparing to unveil a plan to close the camp and move some prisoners to US soil. The plan proposed one or more prisons from a working list that included facilities in Kansas, Colorado and South Carolina.
On February 23, 2016, Obama stated that Congress had finally agreed to closing the camp, but the exact time frame of the camp closing was not revealed. At the time there were 91 prisoners in Guantánamo. From these 35 were recommended for transfer if security conditions could be met. The remaining prisoners were expected to be brought to U.S. facilities in the United States, with some of those detainees being dealt with through military commissions and others facing trial in civilian courts. 13 potential facilities in the United States that might be used to house detainees were reviewed by the Obama administration, but their names were not revealed. The plan was rejected by several Republicans in Congress.
On August 15, 2016, 15 prisoners were transferred from the prison. Twelve Yemeni nationals and 3 Afghans were transferred to the United Arab Emirates, bringing the total number of prisoners to 61 with 20 more cleared for transfer.
President Obama did not close the prison before leaving office but had reduced the number of prisoners to 41. On 30 January 2018, just before delivering his State of the Union address, President Donald Trump signed an executive order to keep the prison open indefinitely.
On February 11, 2021, President Joe Biden announced a review of plans to close the camp by the end of his term. At the time, there were 40 prisoners at the camp, most of whom had been held for nearly two decades without being charged or tried.
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.
(b) Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantánamo should precede the closure of the detention facilities at Guantánamo.
(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.
(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo.
(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.
(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.
Sec. 3 Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
As mentioned previously, the detention facilities were never closed. During his 2008 presidential campaign, candidate Obama had promised to close down the prison in 2009. After being elected, he repeated his campaign promise on 60 Minutes and the ABC program This Week. On January 22, 2009, Obama stated that he had ordered the government to suspend prosecutions of Guantánamo Bay detainees for 120 days to review all the detainees' cases to determine whether and how each detainee should be prosecuted and he Obama signed the executive order quoted above, stating that Guantánamo Detention Camp would be closed within the year.
Incoming officials of his administration discovered that there were no comprehensive files concerning many of the detainees, and so assembling the available evidence would take much longer than expected. In May, Obama announced that the prosecutions would be revived. But these plans met a roadblock on May 20, 2009, when the United States Senate passed an amendment to the Supplemental Appropriations Act of 2009 by a 90–6 vote in which they blocked funds needed for the transfer or release of prisoners held at the Guantánamo Bay detention camp.
Later that year, in November 2009, President Obama admitted that the "specific deadline" he had set for closure of the Guantánamo Bay camp would be "missed." He was still optimistic that the camp would probably be closed in 2010, but did not set a specific deadline.
Earlier in the summer of 2009, the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, and the Standish Maximum Correctional Facility in Standish, Michigan, were both considered as potential sites for transfers of over 220 prisoners. Kansas public officials, including both of its senators and governor, objected to transferring prisoners to the former, while those in Standish supported the move to the latter facility.
On December 15, 2009 President Obama issued a presidential memorandum formally closing the detention center and ordering the transfer of prisoners to the Thomson Correctional Center, Thomson, Illinois, but by 2012 this plan was abandoned. Attorney General Eric Holder said in a letter, "I have committed that no Guantanamo detainees will be transferred to Thomson. As you know, any such transfer would violate express legal statutory prohibitions."
The Guantanamo Review Task Force issued its final report on January 22, 2010, and the report was released on May 28, 2010. The report recommended releasing 126 current detainees to their homes or to a third country, 36 be prosecuted in either federal court or a military commission, and 48 be held indefinitely under the laws of war. In addition, 30 Yemenis were approved for release if security conditions in their home country improved.
On January 7, 2011, President Obama signed the 2011 Defense Authorization Bill which contains provisions that placed restrictions on the transfer of Guantánamo prisoners to the mainland or to other foreign countries. This law prohibits the use of funds to "modify or construct facilities in the United States to house detainees transferred from" Guantánamo Bay. But Obama expressed his strong objections to these clauses. Obama signed the 2011 Defense Authorization Bill, but promised that his administration would "work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.:
On March 7, 2011, Obama ordered the resumption of military trials, conducted by military officers, with a military judge presiding, of terror suspects detained at Guantánamo Bay. He signed executive order 13567 that requires a review of detainees' status "within a year and every four years after that to determine whether they remain a threat".
On December 12, 2011, The New York Times published an op-ed written by retired United States Marine Corps Generals Charles C. Krulak and Joseph P. Hoar, arguing that the provision of the National Defense Authorization Act for Fiscal Year 2012 which extended a ban on transfers from Guantánamo, would bolster Al Qaeda's recruiting efforts and make it "nearly impossible" to transfer 88 men (of the 171 held there) who had been cleared for release.
In November of 2012, the Senate voted 54–41 to prevent detainees from being transferred to the US. A new defense authorization bill called the National Defense Authorization Act for fiscal 2014 relaxed restrictions on transferring detainees from the U.S. prison at Guantanamo Bay, Cuba, to the custody of foreign governments. In his 2015 State of the Union address, Obama stated Guantánamo Bay "is not who we are" and that it was "time to close Gitmo". On November 4, 2015, Obama stated that he was preparing to unveil a plan to close the camp and move some prisoners to US soil. The plan proposed one or more prisons from a working list that included facilities in Kansas, Colorado and South Carolina.
On February 23, 2016, Obama stated that Congress had finally agreed to closing the camp, but the exact time frame of the camp closing was not revealed. At the time there were 91 prisoners in Guantánamo. From these 35 were recommended for transfer if security conditions could be met. The remaining prisoners were expected to be brought to U.S. facilities in the United States, with some of those detainees being dealt with through military commissions and others facing trial in civilian courts. 13 potential facilities in the United States that might be used to house detainees were reviewed by the Obama administration, but their names were not revealed. The plan was rejected by several Republicans in Congress.
On August 15, 2016, 15 prisoners were transferred from the prison. Twelve Yemeni nationals and 3 Afghans were transferred to the United Arab Emirates, bringing the total number of prisoners to 61 with 20 more cleared for transfer.
President Obama did not close the prison before leaving office but had reduced the number of prisoners to 41. On 30 January 2018, just before delivering his State of the Union address, President Donald Trump signed an executive order to keep the prison open indefinitely.
On February 11, 2021, President Joe Biden announced a review of plans to close the camp by the end of his term. At the time, there were 40 prisoners at the camp, most of whom had been held for nearly two decades without being charged or tried.