Over the next 48 hours, US military cargo planes will deposit a handful of detainees from Guantánamo Bay to new lives overseas for what is likely to be the final time for at least four years.



Barack Obama will leave office with either 41 or 42 men still detained at Guantánamo, the Guardian has learned, as his plan to close the infamous detention facility falls short.

Donald Trump has embraced Guantánamo and he has promised to send new cellmates to join the 41 or 42 who remained in captivity through Obama’s presidency, a move that will shatter a key aspect of the Obama legacy.

Two knowledgable US officials said that there will be a final round of transfers before Obama’s presidency expires at noon on Friday, all of them involving men whom internal administration reviews consider not to pose threats to US interests. Three or four men are expected for a final wave of transfers, although neither official would confirm their final destinations.

That will leave behind five or six so-called cleared detainees, who have not been released because there is not enough time left before Obama leaves office to firm up diplomatic arrangements for transfer, as well as to provide required congressional notification. Both officials described last-minute scrambling to make the transfers happen. One said Obama was more likely to leave 42 men detained at Guantánamo than 41. There are 45 detainees at Guantánamo currently.

In addition to the small number of cleared detainees left behind, Guantánamo will continue to hold 26 men whom US security officials consider too dangerous to release but for whom the US possesses insufficient untainted evidence to charge with an offense. Finally, 10 men are in various stages of military tribunals.

It is unclear if Trump will retain the quasi-parole board structure, a Bush-era institution that Obama resurrected, that evaluates any threat detainees pose. The chief military commissions prosecutor, Army Brig Gen Mark Martins, is expected to stay through the new administration, but it is also unclear if Martins will seek war crimes charges against additional detainees.

“The failure to close Guantánamo is an epic one,” said Laura Pitter of Human Rights Watch, “not just because so many lives have been destroyed by years of unlawful and unfair detentions and torture, but because Obama hands Trump the ability to keep using it.”

In its 15 years as a wartime detention center, Guantánamo has held 780 people, more than 500 of whom George W Bush released. Obama entered office with 242 men detained there, 201 of whom now reside elsewhere – some far from their original homelands. In September, the director of national intelligence told Congress that 5.6% of detainees Obama transferred were confirmed as “re-engaging” in terrorism, compared with 21.2% of Bush’s transfers.

Trump, supported by the officials he has nominated for cabinet-level national security positions, has said he will “load [Guantánamo] up with a lot of bad dudes.” In early January, Trump urged Obama to cease the transfers.

Throughout his presidency, and particularly after Republican electoral success in 2010, Obama has prioritized the transfer of “cleared” detainees, avoiding more sweeping and confrontational approaches such as shuttering the facility wholesale or ending the military tribunals that have dragged on for years without reaching the trial phase.

Although Obama signed an order on his second full day as president to close the Guantánamo detention facility, his plans since 2009 always envisioned an ineradicable core of the population remaining in indefinite military detention at a different high-security facility, in the US, something that human rights groups bitterly dismissed as “Gitmo North”.

It was never to be. Obama’s plans crashed on the shoals of Republican-led congressional opposition, which turned a Guantánamo closure from the consensus position of 2008 into a partisan crusade against Obama, and internal bureaucratic subversion from a military and Pentagon uncomfortable with the end of the wartime prison.

In 2011, the GOP-led Congress, with significant Democratic support, barred the military from bringing Guantánamo detainees into the US for any reason. It was a crippling blow to Obama’s plans, and to the detainees themselves, the majority of whom went on high-profile hunger strikes to broadcast their hopelessness. Obama subsequently recommitted himself to transferring detainees to willing foreign countries, a laborious process that led to the departure of handfuls of detainees over time.

One senior military official from the Obama era who opposed the closure, the former US Southern Command chief John Kelly, is Trump’s nominee to run the Department of Homeland Security. Kelly instituted a press blackout to stop reporting on the hunger strikes.

Human rights groups that supported Obama’s goal of shuttering Guantánamo while raising persistent opposition to his approach to it had urged the outgoing president to urgently, perhaps unilaterally, close it before Trump takes office. Last week, 40 progressive Democratic legislators wrote to Obama insisting: “Mr Trump must be deprived of the use of Guantánamo Bay.”

With Guantánamo about to pass into Trump’s hands, they are now reckoning with a supercharged locale for indefinite detention and military tribunal, as well as what they consider the missed opportunities of the Obama era.

“It’s absolutely disgraceful that cleared detainees, detainees cleared for transfer to countries that never posed any problem or security consideration, are going to be left behind to languish in the prison under President Trump,” said Shayana Kadidal, an attorney with the Center for Constitutional Rights.

Human Rights Watch’s Pitter added: “We also know that Trump apparently intends to halt transfers out, which means that a number of men will remain trapped, having never received a fair chance to challenge their detention. We have seen time and time again men held at Guantánamo for years based on false facts and misinformation and who posed no danger to the US. Guantánamo has done enormous damage to the US’s ability to promote human rights around the world, and apparently it will continue to do so.”

With his time in office dwindling, Obama accelerated transfers out of Guantánamo throughout 2016, pushing diplomats to finalize negotiations with foreign countries to accept as many transferred detainees as possible. Veterans of the closure effort have described foreign counterparts as reluctant to accept former detainees for security, financial and political concerns, all obstacles they worked to overcome.

The high-water mark came in August, when 15 detainees left for the United Arab Emirates, the largest single transfer of Obama’s presidency. Oman took another 10 detainees last weekend, despite an early January tweet from Trump imploring Obama to end the transfers. Officials who were not cleared to speak for the record described an intense final push to finalize the last handful of transfers.

As the administration draws to a close, it continued a pattern that has baffled attorneys for Guantánamo clients: fighting in court to prevent judges from ordering the transfer of detainees, despite that outcome being Obama’s stated goal.

The Center on Constitutional Rights is representing Sufiyan Barhoumi, an Algerian detainee cleared by the quasi-parole panel, the Periodic Review Board, on 9 August. Yet the outgoing US secretary of defense, Ashton Carter, has not processed Barhoumi’s paperwork, according to court filings, prompting the organization to seek redress before a judge. The center filed an emergency motion for release on Tuesday in a Washington DC federal court.

“The Obama administration is fighting for presidential prerogatives four days before it’s going to turn all that power over to President Trump, who has promised not to release anyone,” Kadidal said.

Barhoumi is one of nine detainees currently deemed eligible for transfer, either by the Periodic Review Board or by a 2010 administration review taskforce. Their time at Guantánamo will outlast the president who pledged to seek their freedom.