Ash Carter, President Obama’s pick to be the new defense secretary, has told senators he doesn’t see any way to close down the prison at Guantanamo Bay over the next two years, putting a major dent in Mr. Obama’s hopes to shut it down before he leaves office.
With no way to quantify how much risk a terrorism suspect would pose to the U.S. if released, it comes down to the personal judgment of the Pentagon’s top civilian, and senators said Mr. Carter — whom Mr. Obama has tapped to replace outgoing Secretary Chuck Hagel — isn’t inclined to approve enough applications to shutter the prison.
“He told me that basically he agrees with the president on the goal, but he doesn’t see how it can happen,” said Sen. Kelly Ayotte, a New Hampshire Republican who sits on the Senate Armed Services Committee and has met with Mr. Carter as part of his effort to win confirmation to the secretary’s post.
Mr. Carter will meet with the committee for his official confirmation hearing next Wednesday.
“I’m sure he will be asked about Guantanamo,” said Sen. John McCain, the Arizona Republican who will chair the confirmation hearing. “I told him the issue was going to be discussed.”
Mr. Obama has already missed his own self-imposed deadline for closing the prison, which sits on U.S.-controlled territory in Cuba, within a year after he took office.
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Congress has taken the final decision on detainee transfers out of Mr. Obama’s hands, requiring the defense secretary to personally clear detainees by certifying they are not likely to return to the fight against the U.S.
Mr. Obama has tried to speed up the rate of transfers, sending more than 20 prisoners to foreign countries in the last two months of 2014, but nonetheless still clashed with Mr. Hagel, who held final say.
Even now, 122 detainees remain at Guantanamo Bay. Fifty-four have been cleared for transfer, while a board recommended others be held at the prison.
To shutter the detention center, the administration would need to figure out where to move those prisoners who can’t be released, and Congress has opposed moving any to the U.S., extending the ban on transfers to America for at least another year in the fiscal 2015 defense policy bill.
Mr. Carter, who is expected to easily be confirmed by the Senate, is unlikely to be any more lenient in approving detainees for transfer, Ms. Ayotte said.
“I have talked to him about it, and I certainly hope not,” she said. “That’s not the impression that I got from meeting him.”
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Sen. Angus S. King Jr., Maine independent and a member of the committee that will question Mr. Carter, said that while he expected it to come up in the confirmation hearing, he didn’t think the nominee’s views on Guantanamo would affect his confirmation.
Detainees are reviewed to determine whether they would pose a threat to the U.S. if released, but with no way to define a “continuing significant risk,” the bar a prisoner has to meet to be categorized as a low risk of returning to battle is subjective, said David Remes, a human rights lawyer who represents 18 Guantanamo detainees.
“It’s impossible to quantify,” he said. “Each detainee presents a unique situation, and it just boils down to a collective judgment of the six expert agencies.”
The rules for reviewing detainees are loose enough to allow board members from intelligence and defense agencies to make a decision based on the state of the world, not on a set list of acceptable transfer countries, said Chris Anders, senior legislative counsel at the American Civil Liberties Union.
“It’s a criteria that allows restrictions to be applied in a very dynamic way,” he said. “There’s no one list that’s forever the be all, end all list.”
A review board looks at the likelihood that a prisoner will return to terrorism or establish ties with a terrorist group, how much family or government support the detainee will receive, any law enforcement interest in the prisoner and whether the prisoner could face a military trial.
“The decision to transfer a detainee is made only after detailed, specific conversations with the receiving country about the potential threat a detainee may pose after transfer and the measures the receiving country will take in order to sufficiently mitigate that threat and to ensure humane treatment,” Lt. Col. Myles Caggins III, Defense Department spokesman for detainee policy, said in a statement.
These decisions happen in “a black box,” giving outsiders no insight into how decisions are made, Mr. Remes said.
The defense secretary uses the finding of the board, information about the security of the receiving country and risk mitigations taken by the U.S. to make a final decision and sign off on the transfer.
Less than 10 percent of detainees released under the Obama administration are known to have involved themselves with terrorism after their release, according to Defense Department figures.
Because of this low number, Mr. Remes said the fight over what risk detainees who are released pose to the U.S. is more about scoring political points and less about national security.
“With everything we’re facing in the world, [the Islamic State], al-Qaeda in the Arabian Peninsula, this fixation on what amounts to a handful of detainees, a grain of sand on the beach, is incomprehensible to me,” he said.
“It’s become a litmus test for if you’re for or against terrorism,” he continued. “This is a symbol of a much larger political conflict.”