Half of the Prisoners at Gitmo Have Been Cleared for Release

The entrance to the Camp VI detention facility at Guantanamo Bay Naval Base, Cuba is guarded, on November 20, 2013.

Charles Dharapak/AP

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The entrance to the Camp VI detention facility at Guantanamo Bay Naval Base, Cuba is guarded, on November 20, 2013.

The recent backlash in Congress over the release of Sgt. Bergdahl could complicate President Obama's plans to close the prison at Guantanamo. By Stacy Kaper

The uproar over President Obama’s exchange of Army Sgt. Bowe Bergdahl for five Taliban prisoners held at Guantanamo Bay still reverberates across Capitol Hill, reopening a debate about the fate of prisoners held at the storied prison.

But the furor hasn’t yet upended the policies that allow detainees to keep trickling out.

Here are the facts about the status of the detainees at Gitmo.

The administration has already cleared 78 of the 149 remaining prisoners for transfer. Having never been charged with a crime, these detainees have since been deemed to pose no national security threat by defense and intelligence officials and could be set for departure at any time.

Under the law, the administration can continue releasing those who have been cleared to their home countries, or to other host nations if releasing them to their own country could be dangerous and result in persecution. Obama has released 89 prisoners during his tenure.

In fact, the administration has doubled down since the Bergdahl controversy broke, with administration officials insisting the White House remains committed to Obama’s goal of continuing the transfer of other detainees and ultimately closing the facility. Gitmo was set up in the wake of 9/11 as a place to hold suspected terrorists with little hindrance from domestic or international law, and it has been assailed by human rights advocates as operating outside the law.

There are serious financial considerations for maintaining the Guantanamo Bay detention facility, which plays to the hands of fiscal conservatives. The U.S. has spent at least $5 billion on Guantanamo Bay since it started accepting prisoners in 2002.

And the facility costs the federal government an average of $2.7 million per prisoner per year.

There are of course complications to closing Gitmo, and the recent backlash in Congress could continue to dog Obama’s plans.

Among the 78 detainees cleared for transfer, 58 are Yemeni, and there are lingering security concerns about releasing them back to their home country, given the instability there. What’s more, the Senate Armed Services Committee is proposing a one-year ban on transferring detainees to Yemen, as part of the National Defense Authorization Act, which Congress needs to finalize before year end.

Then there are other complications. There are 23 prisoners who are slated for prosecution but stuck in legal limb, with uncertainty that they can be tried through the military tribunal process there, given recent questions raised by the courts about the legality of doing so. And there is no clear alternative as there is currently a ban in against transferring any detainees to the U.S. for incarceration or criminal trials—although the Senate Armed Services Committee has also proposed eliminating that restriction.

There is also another segment of the detainee population at Guantanamo Bay—some 38 people who are considered indefinite detainees, who have never been charged or convicted of a crime, but have not been deemed safe enough to clear for transfer. Their fate remains in limbo with no clear end in sight.

Finally, there are seven detainees facing military tribunals and three detainees who have been convicted and are either serving or awaiting a sentence.

In the meantime, the outlook for Gitmo is complicated by the fact that once the last U.S. troops leave Afghanistan, it is unclear that there will be a legal basis to continue to hold detainees at the facility. The government is relying on the law-of-war authorities, which relies on the U.S. being engaged in an armed conflict to hold suspected enemy combatants.

For now, Obama can keep transferring out cleared detainees without any contentious prisoner swaps, but there is no easy solution for what to do with those being held indefinitely or stuck in legal limbo.

How Congress acts this year on Gitmo policy could depend on whether the Senate takes up the defense authorization act and reconciles it with the House before or after the elections. Not to mention how fresh the Bergdahl brouhaha is in critics’ and voters’ minds.

The House Foreign Affairs Committee plans to examine the trade’s implication on national security and the fight against terrorists in a joint subcommittee hearing Wednesday, and critics are continuing to use it as ammo against Obama’s leadership as commander-in-chief.

And Sen. Thad Cochran, a Mississippi Republican, announced Friday he is leading a band of lawmakers in demanding a legal opinion on whether the Obama administration violated federal law in transferring the detainees without congressional consent to spend such funds.

So the future of the prison continues to be uncertain.

The outlook currently is unclear,” said Melina Milazzo, a senior policy counsel with Center for Victims of Torture. “We won’t know until the next National Defense Authorization Act, later this year, whether closing Guantanamo will be a reality for this administration or a future administration.”

Milazzo added, “It will really have to take a combined effort by the administration and Congress to close Guantanamo.

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