,CO5809155'ED U.S. Department of State Case No, F-2013-08742 Doc No. CO5809155 Date: 07/01/2015
RELEASE IN FULL
7 Mwg olor
201300279
United States Department of State
Washington, D.C. 20520
January 10, 2013
DECL: 01/09/2023
REVIEW AUTHORITY: Archie Bolster, Senior
ACTION MEMO FOR THE SECRETARY Reviewer
FROM: L— Harold Hongju Koh
S/GC- Daniel Fried
DRL - Michael Posner
SUBJECT: (SBU) Memorandum to the President on Guantanamo Policy
Recommendation
(SBU) That you sign the attached memorandum to the President
recommending a way forward to revitalize the Guantanamo closure policy.
Approve _ at we Disapprove _
Background
(SBU) In light of the renewal of restrictions in the FY 2013 National On
Defense Authorization Act (NDAA) on the Presidents poliey to pursue the closure | {ys/3
of the Guantanamo Bay detention facility (GTMO), the attached memorandum
recommends three primary actions to mitigate the effect of those restrictions and to
regain ground on key elements of the closure policy, especially the Executive's
ability to transfer Guantanamo detainees at its discretion:
1. (SBU) Designate a senior White House official to push the implementation of
the consensus transfer decisions made by the interagency in 2009-2010 and any
new transfer decisions resulting from the upcoming periodic review of
detainees not approved for transfer.
2. (SBU) Engage Congress immediately to lay the basis for significantly
mitigating the NDAA’s most damaging prohibitions.
3. (C) Start implementing longer-term solutions to the two hardest problems in
closing GTMO: improving Yemeni capacity to receive Yemeni detainees
currently held at G'TMO and conducting credible periodic reviews of detainees
who are designated for continued detention without trial
Attachment:
Memorandum to the President
CONFIDENTIAL
Classified by: S/GC Special Envoy Daniel Fried
E.O. 13526, Reasons: 1.4 (b) and (d)
UNCLASSIFIED U.S. Department of State Case No. F-2013-08742 Doc No. CO5809155 Date: 07/01/2015CO5809155FIED US. Department of State Case No. F-2013-08742 Doc No. C05809185 Date: 07/01/2015
Approved: SIGC ~ DFried ok
L-HHKoh ok
DRL -MPosner ok
Drafted: SIGC— Mike Williams, 7-3884
Cleared: NEA-~SSeche ok
L/PM—TBridgeman ok
D@®)- OBlair ok
D(N)~SAlexander ok
P—MAshraf ok
SIP —JWright info by request
UNCLASSIFIED U.S. Department of State Case No. F-2013-08742 Doc No. C05809155 Date: 07/01/201505809151 FIED U.S. Department of State Case No. F-2013-08742 Doc No. C05809151 Date: 07/01/2015
RELEASE IN PART |
B1,1.4(0)
201300279
‘THE SECRETARY OF STATE.
WASHINGTON
CONFIDENTIAL January 15, 2013
DECL: 01/09/2023
REVIEW AUTHORITY: Archie Bolster, Senior
MEMORANDUM FOR THE PRESIDENT [Reviewer —
FROM: — Hillary Rodham Clinton v2
SUBJECT: Revitalizing the Guantanamo Closure Policy
(SBU) I remain a strong advocate of your policy to close the Guantanamo
Bay detention facility (GTMO) responsibly and to ensure U.S. detention policy and
practice for terrorism suspects are consistent with U.S. values and do not
strengthen our enemies. Your January 22, 2009 Executive Orders set a new course
on GTMO, interrogation, and other detention policies and have strengthened our
security and international standing, including through improved counterterrorism
cooperation, Unfortunately, congressionally imposed barriers to implementing our
GTMO closure policy are undermining some of the support these orders helped us
eam from the public and our allies. If we do not make advances in closing GTMO,
that support will erode further. The FY 2013 National Defense Authorization Act
(NDAA) renews and adds to these challenges. However, consistent with your
signing statement, [ believe the following measures would revitalize a viable
GTMO policy and set us on a path to closure.
(C) Designate a Senior White House Official for GTMO: I recommend
you both appoint a senior White House official to lead all GTMO efforts and also
direct agencies to pursue certification of existing transfer designations and any new
transfer designations resulting from the periodic review process. A renewed
GTMO closure policy requires detainee transfers. The GTMO detainee transfer
restrictions in the FY 2011 and FY 2012 NDAAS required the Secretary of
Defense, with my concurrence, to “certify” numerous conditions prior to any
transfer, which effectively prevented any transfers except those few excepted from
certification (i.e., only transfers pursuant to a U.S. court order or to effectuate a
military commission pre-trial agreement), Following 71 transfers in this
Administration, the GTMO population now stands at 166 detainees. State has
facilitated only four transfers in the past two years, each pursuant to the narrow
certification exceptions, despite dozens approved for transfer. Working through a
CONFIDENTIAL
Classified by Secretary of State Hillary Rodham Clinton
E.O. 13526, Reasons: 1.4 (b) and (4)
UNCLASSIFIED U.S. Department of State Case No. F-2013-08742 Doc No. C05809151 Date: 07/01/2015C0580915151ED US. Department of State Case No. F-2013-08742 Doc No, C0S809151 Date: 07/01/2015
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“transfer working group.” which is not NSS-led, the Department of Defense and
other agencies have been wary of attempting certification without clear and
specific guidance ~ there have been zero transfer certifications to date. The FY
2013 NDAA renews certification requirements and removes the pre-trial
agreement exception, Only one transfer certification is now being considered.
‘Without a change in approach, this impasse will continue. Additionally, 46
ltainees are designated for continued detention; the periodic review process you
ordered in March 2011 is vital to a credible policy that includes continued
detention. We need a White House lead.
(C) Engage Congress Now: I recommend that, in a coordinated legislative
strategy, you direct efforts to prevent Congress from reenacting the current
restrictions in FY 2014, We should engage supporters of your policy but also
‘some proponents of GTMO, on the grounds that tying the Executive’s hands on
detention policy has negative national security implications beyond GTMO. We
will face resistance but need to lay the groundwork now, making the following
case: (1) this Administration’s transfer efforts are responsible and advance our
national interests; (2) the federal courts provide a more stable venue for conspiracy
and material support for terrorism charges under prevailing D.C. Cireuit precedent
(because these are not war crimes under international law, they are not charges
available in military commissions for detainees at GTMO); (3) a recent
Goverment Accountability Office report, requested by Senator Feinstein, bolsters
the cost efficiency and feasibility of housing some GTMO detainees in U.S.-based
facilities; and (4) federal courts are time-tested and credible to our allies. (If the
law permits, I recommend that you consider transfers to the United States for pre-
trial detention, trial, and sentences.)
(C) Yemeni Detainees: Any path towards GTMO closure must include a
plan for Yemeni detainees, who account for over half the GTMO population. John
Brennan has focused the interagency on this problem. The State Department
supports helping Yemen develop a rehabilitation program and other measures to
address both future transfers from GTMO and Yemen’s own domestic extremists.
This is a serious challenge given Yemen's minimal resources and weak central
authority. among other nrohlems. —
(C) We must signal to our old and emerging allies alike that we remain
serious about tuning the page on GTMO and the practices of the prior decade.
The revitalization of transfers, efforts to prosecute some detainees in federal courts,
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UNCLASSIFIED U.S. Department of State Case No. F-2013-08742 Doc No, C05809181 Date: 07/01/2015}CO5809151'ED US. Deparment of State Case No. F-2013-08742 Doc No. C05809151 Date: 07/01/2015,
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a longer-term approach to the return of Yemeni detainees, and credible periodic
reviews would send that signal and renew a credible detention policy.
CONFIDENTIAL
UNCLASSIFIED U.S. Department of State Case No. F-2013-08742 Doc No. C05809151 Date: 07/01/2015