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Omar Shakir, attorney at the Center for Constitutional Rights, says the proposal is very similar to the executive order Obama issued in 2009, which means he could have closed it then – and he could close it today without congress

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: It’s the Real News Network. I’m Sharmini Peries coming to you from Baltimore. On Tuesday, President Barack Obama sent a new proposal to Congress that was prepared for him by the Pentagon to close down Guantanamo Bay detention facility located in Cuba. The prison currently holds 93 detainees, 34 of whom are cleared for release. Speaking at the White House on Tuesday, Obama explained why he wants to close down the detention facility. Let’s have a look. BARACK OBAMA: For many years it’s been clear that the detention facility at Guantanamo Bay does not advance our national security. It undermines it. This is not just my opinion. This is the opinion of experts, this is the opinion of many in our military. It’s counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. PERIES: Both Republicans and human rights advocates reacted highly negatively to the plan, for very different reasons, though. Republican Senator John McCain, who previously was one of the few Republicans to indicate support for closing Guantanamo, rejected the plan on the basis that it is too vague and leaves most major decisions to Congress. Human rights groups such as Amnesty International criticized the plan, saying it does not resolve the issue that many of the prisoners would continue to be held without charges or trial. The Center for Constitutional Rights said that the plan mainly relocates Guantanamo to the U.S., but does not actually close it. On to discuss Obama’s proposal is Omar Shakir. Omar is a Bertha fellow and attorney at the Center for Constitutional Rights. He represents several detainees at the Guantanamo facility and regularly travels to the base, as he will be doing next week. Omar, thank you so much for joining us today. OMAR SHAKIR: Thank you for having me. PERIES: Omar, can you outline what’s in the president’s proposal thus far? SHAKIR: Sure. The president’s proposal sort of encapsulates four different major pillars. The first is to transfer the 35 men that have been cleared for release immediately, either to repatriate them to their home countries, or if that’s not possible, to send them to a third country for resettlement. The second prong is to really accelerate the pace of the periodic review boards, which is this inter-agency group, including senior defense and intelligence officials that review the status and the basis for detention for those detainees who have yet to be cleared. The third prong of his plan involves looking into continued legal options for detainees, whether that be reforms to the military commission system or whether that means exploring the opportunity for foreign prosecutions and other jurisdictions, or Article Three plea deals or prosecutions here within the United States. And then the fourth part to his plan, which is sort of for those that don’t, cannot be disposed of or dealt with following the first three options, would be to transfer the remaining detainees, either as part of the commission system or those that are not being charged but are continued to being held under presumed [inaud.] detention to a detention facility in the United States. PERIES: Right. So why isn’t this plan a real improvement in terms of upholding international law and heading towards a direction of closing the base, although it’s not being actually closed? SHAKIR: Sure. I think steps one and two are ones that have long been very known to be part of what President Obama needs to do. Organizations like ours were calling for it in not only 2008-2009 but even in, you know, the Bush years, that those that are cleared for release should be immediately released. We had men that were there today who have been cleared for years and years who continue to languish in Guantanamo Bay for really nothing beyond political reasons. The periodic review boards were established by President Obama in 2011. At the time he vowed to hold all hearings within–initial hearings within one year of that executive order. The first hearing didn’t take place for another three years. There’s still 33 men who have yet to have a periodic review board hearing to be able to show that their detention is no longer warranted. In terms of the legal disposition, option three, President Obama in his statement today made very clear that the military commissions have been an abject failure. You know, the 9/11 case and other cases remain mired in pre-trial movements, you know, it’s likely going to be many, many years, if ever, that that case gets to trial. We still have no verdict. And this administration continues to not, you know, vigorously look at the option of trying those men that they do intend to charge in federal courts under fair procedures. And of course, the biggest problem of all is this idea of ultimately transferring a number of detainees to federal prison in the United States, which does not close Guantanamo in any real sense, but merely relocates it to a different ZIP code. You know, the infamy, the injustice of Guantanamo has never been about its physical location as much as the system of indefinite detention without charge which it embodies. And for the men that would be potentially subject to that, that would include men who are in their 15th year of detention who have yet to be charged with a crime. And the idea that those men, when they finally are able to board a plane to Guantanamo, instead of being sent to their loved ones and to their homes would be sent to a maximum security prison in the United States for further indefinite detention is really unconscionable. PERIES: Now, doesn’t this proposal smack of similarity in terms of President Obama’s 2009 proposal where he issued an executive order to close the detention facility and relocate detainees elsewhere? SHAKIR: Absolutely. I mean, you know, in 2009 part of Obama’s executive order was to create a task force that would review the status of detainees and, you know, would sort of move them into three categories, which are the categories we still have today. Those that are cleared for release, those that are going to be charged, either through federal court proceedings or through military commissions, and then those that the administration has literally indefinitely detained, decided that they cannot charge but they are not yet cleared for release. And since the task force issued its findings, you know, in 2010, we’ve been in a situation where the outlines or contours of what needs to be done has been very clear, which is why this plan in part simply embodies what has long been known to what needs to be done, which is, you know, concrete action to release the guys that have been cleared, accelerate the pace of the review board so more guys get cleared. And then for those few that this administration does intend to charge, it needs to do so in fair Article Three proceedings, not in the sham military commission system. So this has been known for a long time. It’s a shame that it takes, you know, with only ten months left in this administration does the president set out what has been clear that he needs to set out from the beginning. And it’s, you know, what we need to see beyond rhetoric and talk is actual substantive action and close Guantanamo. Let’s not forget, Guantanamo has now been opened for more days under President Obama than under President Bush. It’s his prison, it’s his legacy, until he actually moves beyond words and closes the facility. PERIES: Many who would defend Obama back then said that Congress obstructed his plan to close the facility. Isn’t that still true now, and is this the best he can do? SHAKIR: No, that’s not accurate. Congress has certainly been an impediment, but President Obama today can take action well within his power to release the clear guys, that’s never been sort of contested as within his ability to act. President Obama today can accelerate the pace of review boards to clear guys and subsequently release them. You know, courts, Article Three courts in this country, prosecutors can arrange guilty pleas with the few men that, you know, are being, on the slate to be charged with crimes. All the–you know, transfer foreign prosecution–all these steps are ones this administration can take today. And even as a matter of historical record, you know, it’s been very clear that this has never been President Obama’s priority issue. Whether it be healthcare in 2009, whether it be the Iran nuclear deal or different economic reforms, President Obama’s continually failed to use his political capital on Guantanamo, and he’s really created the grounds for opportunistic folks on the Hill and elsewhere to turn Guantanamo into a partisan political issue, which it wasn’t when President Obama first came to power. PERIES: That’s Omar Shakir. He’s a Bertha fellow at the Center for Constitutional Rights in New York. I thank you so much for joining us today, Omar. SHAKIR: Thank you. PERIES: And thank you for joining us on the Real News Network.


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Omar Shakir, Israel and Palestine Director at Human Rights Watch, investigates human rights abuses in Israel, the West Bank, and Gaza. Prior to his current role, he was a Bertha Fellow at the Center for Constitutional Rights, where he focused on U.S. counterterrorism policies, including legal representation of Guantanamo detainees. As the 2013-14 Arthur R. and Barbara D. Finberg Fellow at Human Rights Watch, he investigated human rights violations in Egypt, including the Rab’a massacre, one of the largest killings of protesters in a single day.