Ted Cruz and Senate GOP want to expand the Gitmo transfer ban — including to Afghanistan and Israel, but exempting Saudi Arabia

The newly unveiled Senate Armed Services Committee version of the National Defense Authorization Act has a provision that would wildly expand the number of countries to which the U.S. government may not transfer low-level Guantanamo detainees. Specifically, it would ban transfers to any nation for which the State Department has issued a travel warning. Senator Ted Cruz, Republican of Texas, has taken credit for adding it to the bill during the committee’s closed-door markup last week. This provision is not in the House version of the NDAA, so it has the feeling of something that will likely get removed in conference. But it’s interesting to consider.

First, context: Current law already bans the transfer of detainees to countries that are deemed by the State Department to be state sponsors of terrorism. Those are: Iran, Sudan, and Syria. Current law also already bars the transfer of detainees to countries whose government lacks the capacity to keep an eye on them, which is why the low-level Yemeni detainees are all getting resettled in other countries. UPDATE: And current law already specifically bans transfers to Libya, Somalia, Syria (redundantly) and Yemen.*

Cruz’s provision in the Senate version of the NDAA would go further by banning the transfer of any detainees to countries where the State Department has issued security-related travel warnings to Americans, except for Saudi Arabia. That list is much, much longer: Afghanistan, Algeria, Burkina-Faso, Burundi, Cameroon, Central African Republic, Chad, Colombia, Congo, El Salvador, Eritrea, Haiti, Honduras, Iran, Iraq, Israel, Kenya, Lebanon, Libya, Mali, Mauritania, Mexico, Niger, Nigeria, North Korea, Pakistan, Philippines, South Sudan, Saudi Arabia [however, as noted, it is exempted], Somalia, Sudan, Syria, Tunisia, Turkey, Ukraine, Venezuela, and Yemen.

Comparing that list to the list of the 80 remaining detainees, we see that the most important change this would make would be barring repatriations to Afghanistan. There are two three [Update: new PRB recategorization disclosed today for Obaydullah, whose case I wrote about in this 2012 article] detainees on the list of those recommended for transfer who are Afghans, along with six five other Afghans who are not currently recommended for transfer but someday may be if the parole-like Periodic Review Board decides that it is no longer necessary to keep holding onto them.

Eight other detainees could also, in theory, be affected by this: on the transfer list, a Tunisian, and, on the not currently recommended for transfer list, two Algerians, a Mauritanian, three Pakistanis, and a Palestinian.

Query: By what logic did Cruz decide to exempt Saudi Arabia but not Israel? I’m not sure, but note that as a general matter, the provision explains that it is the “It is the sense of the Senate that countries that pose such a significant travel threat to United States citizens that the Department of State feels obliged to issue a travel warning should not be considered an appropriate recipient of any detainee transferred from United States Naval Station, Guantanamo Bay, Cuba; and if a country is subject to a Department of State travel warning, it is highly unlikely that the government of the country can provide the United States Government appropriate security and assurances regarding the prevention of the recidivism of any detainee so transferred.”

Most of both lists are made up of detainees from countries that are already effectively barred from getting repatriations because their home countries are a mess – especially Yemenis. This is not a coincidence, as for years they have stayed behind while other detainees from more stable countries have left under the Bush and Obama administration, even if those leaving were deemed to pose an equal or greater risk as individuals.

Of course, even if this were to stay in the NDAA, by the time it becomes law there will likely be significantly fewer detainees at Guantanamo. The Obama administration has said it expects to get most or all of the remaining 27 28 detainees on the transfer list out by by the summer – if Secretary of Defense Ashton Carter signs off on the deals the interagency has approved, at least. As of last count, there were already 14 such deals ready to go, so we might see more than a dozen transfers in June if he notifies Congress that he has moved on them, setting off the 30-day waiting period.

* International law separately prohibits sending detainees to countries where they are likely to be tortured or persecuted.