Half of the detainees at Guantanamo were approved for transfer nearly four years ago, provided that the home country could provide security guarantees. But the Obama administration has argued that many approved transfers effectively have been blocked by restrictions imposed by Congress.
For instance, lawmakers have barred the administration from transferring any detainee without the Pentagon certifying that, among other requirements, the receiving country is not "facing a threat that is likely to substantially affect its ability to exercise control over the individual." Administration officials have said that's a bar too high in particular for Yemen, home to the world's most active al-Qaida branch and more than half the Guantanamo detainees.
The rules have prohibited transfers to countries where detainees who have been released previously have re-engaged in terrorism. That includes Kuwait, a key U.S. ally that has been lobbying for the return of its two remaining detainees and has built a still unused rehabilitation center to peacefully reintegrate them.
There's also been a prohibition on transferring detainees to countries that the United States has declared a state sponsor of terrorism. Guantanamo houses three Syrians who have been approved for transfer but would be barred from going home under the current rules. Sudan's government says its two remaining detainees were heading home Wednesday — one has completed a sentence after a conviction on terrorism charges and the other is so ill he's unlikely to pose a threat and was recently ordered released by a judge. Court ordered transfers are excluded from the congressional restrictions; otherwise the administration would not have been able to send even a debilitated prisoner home to certain countries.
The congressional deal lifts those restrictions and allows transfers for those detainees who have been approved when the administration determines the transfer is in the national security interests of the U.S.