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Above Photo: Lawyers for Guantánamo Bay detainees say 42 of the 94 potentially available for transfer are caught in legal limbo amid state bureaucracy and partisan politics. Photograph: Jim Watson/AFP/Getty Images

Obama blames Republican Congress for stalled efforts to make good on campaign promise, but detainees’ lawyers say fault lies within his administration

Lawyers representing Guantánamo Bay detainees who have been held at the camp in Cuba for up to 14 years without charge or trial have accused President Obama of stalling on his promise to close the military prison.

As the US president enters his final year in office, pressure is mounting on him to stand by his pledge to shut down the detention center by the time he leaves the White House. Numerous defense lawyers working directly with Guantánamo detainees have told the Guardian that they hold Obama and his senior officials personally responsible for the lack of action.

Obama made his vow to close Guantánamo within a year on his second day in the White House in 2009. In recent months, he has stepped up the rhetoric, promising to redouble efforts to close the prison while also heavily criticising the Republican-controlled Congress for blocking moves to transfer prisoners out of the prison to the US mainland.

Anonymous briefings by Pentagon officials have also indicated that the administration is to speed up the process of transfers of detainees. The New York Times reported earlier this month that the defense secretary, Ashton Carter, has approved 17 transfers of lower-level detainees and would try and push them through by the end of January.

But attorneys at the sharp end of representing the detainees are protesting that though the pace is being picked up in reviewing cases, it remains too sluggish to meet the January 2017 deadline. They see Obama’s criticism of Congress as a smokescreen to obscure the fact that a primary source of the current inertia lies not on Capitol Hill but within his own administration.

“There are signs of progress, but at the current pace the administration will not get through all the detainees and give them a proper chance of transfer by the time Obama steps down,” said Pardiss Kebriaei, a senior attorney with the Center for Constitutional Rights (CCR).

Of the 107 detainees still held at the prison, 86 of them could be freed or transferred to other countries, following appropriate review, with minimal risk of interference by Congress other than a requirement to give the legislature 30 days’ notice of any transfer. In other words, the vast majority of detainees could be cleared out of Guantánamo by the Obama administration acting under its own powers, irrespective of congressional foot-dragging.

Of those 94, 48 have already been cleared for release. In November, the Senate pushed through the National Defense Authorization Act (NDAA), which imposes tighter restrictions on Guantánamo transfers particularly to the US mainland. But the pending toughening of the rules merely angers lawyers acting for the detainees even more – why, they ask, did the Obama administration not act more quickly to effect transfers before the squeeze was imposed.

“Most of the 48 detainees were cleared in 2009 yet are still stuck there – and the question is why. It’s maddening that the administration constantly talks about the ‘irreducible’ number of Guantánamo detainees when it takes such slow steps to reduce the numbers itself,” Kebriaei said.

CCR represents all three main categories of Guantánamo detainees – those cleared for release, those awaiting review by the intelligence services, and the “high-value” detainees charged by military commissions.

Even more baffling from the point of view of the defense lawyers are the cases of 38 detainees who are trapped in a form of legal limbo within the legal limbo that is Guantánamo. In March 2011, Obama made one of his many promises to push for closing the prison when he announced the creation of a new system to process the inmates called Periodic Review Boards (PRBs).

All 38 detainees have never been charged and have been deemed PRB eligible – that is they are entitled to take the first tentative step towards getting out of Guantánamo. Yet in none of their cases has the Obama administration even begun the process.

The 2011 executive order established a regular round of hearings, to be held in full every three years and partially every six months in between, to determine the danger level of each prisoner with a view to transferring those who were not a threat to US national security out of Guantánamo. The order mandated that an initial review would be held for all detainees within a year – that is by March 2012.

Yet the first of these initial reviews was only conducted in November 2013. Today, approaching five years after the executive order was issued, only 18 detainees have had their cases considered – a rate of about three a year – of whom 15 were deemed able to be transferred.

By contrast, in Obama’s first year in the White House, when he was driven politically by his determination to close Guantánamo, his administration sorted through 240 individual cases under the Review Task Force process set up in 2009.

Lawyers report that the review boards are now being convened more rapidly, at a rate of about one or two a month. But Kebriaei pointed out that was still not fast enough to give everyone eligible for a PRB a hearing by the time Obama’s term ends. “They are not even going to give people a chance at being released,” she said.

The current stasis leaves the 38 detainees in the Kafkaesque position of not yet even having been given their initial review under the PRB system, a broken promise under the letter of Obama’s executive order that has nothing to do with Congress. Lawyers say that such a glacial pace of activity can only be explained by lack of political will within the White House or resistance from senior officials within the administration.

“It’s a joke,” said Gary Thompson, the Washington-based lawyer for Russian detainee Ravil Mingazov who is still waiting for an initial PRB review. “The Obama administration set up the PRB process when it suited their political needs, to give them political cover, then did nothing about it.”

Thompson said the experience of the PRBs had soured his view of Obama’s frequently repeated pledge to close the military prison. He said he now treats any announcement by the White House on Guantánamo with deep suspicion: “It’s just the government’s next administrative joke – the next Alice in Wonderland procedure that will prove to be as hollow as those that came earlier.”

At times the failure to move ahead with cases has astonished even those used to the Kafkaesque conditions of Guantánamo. Lawyers for Musa’ab al-Madhwani, a Yemeni, told the Guardian that every time they inquired about the status of his PRB hearing, they were told that his file had not yet been assembled and therefore no official has been assigned to him and no PRB hearing had been scheduled.

This was almost five years after the PRB system was ordered by Obama and more than 13 years after the detainee arrived at the prison.

Clive Stafford Smith of the UK-based human rights group Reprieve, who represents six Guantánamo detainees, said that the system was so sluggish that official correspondence with the Obama administration regularly fell by the wayside. He said over the past 18 months he has written at least five official legal letters asking for an initial PRB hearing for his client Ahmed Rabbani – all of them receiving no reply.

“It’s impossible to understand why they don’t hold a PRB every single day. They have dozens of military lawyers there, but they aren’t being used. That suggests to me that the Obama administration has made an active decision not to do what it promised to do,” Stafford Smith said.

Rabbani, a Karachi taxi driver, has been in Guantánamo for more than 11 years having been sent there in 2004. The US Senate intelligence committee report on CIA torture revealed that Rabbani was arrested in a case of mistaken identity – he had been assumed to be the wanted al-Qaida member Hassan Gul.

The detainee is a prolific writer from his prison cell and has described his despair over the lack of progress on his request for a PRB hearing. In letters to his lawyers he wrote:

President Obama promised to close the prison years ago. He formed the PRB and all individual countries agreed to receive their nationals. But months and months have passed, the number of people who have been released through the PRB can be counted on two hands. It’s so incredibly slow. How long will it take for me?

I ask the American people to search for the truth, for the truth of the continuous existence of the prison at Guantánamo. I ask the American people, who claim to protect human rights, to practice what they preach – for where is equality and justice and democracy?”

Mohammed al-Qahtani, who has the distinction of being the only detainee who the US government has admitted was tortured by defense officials while at Guantánamo, went on hunger strike to protest at the lack of any progress on his PRB. His attorney Ramzi Kassem, a law professor at the City University of New York, said that his client still had not been granted a date for his first review hearing and had not even been assigned a personal representative who deals with the organisational aspects of the process.

“All he wants is what he’s entitled to under Obama’s own process. That’s why he went on hunger strike – not to ask for release but because he wants a PRB date. And yet there’s been total silence, he hasn’t even been given a tentative hearing date,” Kassem said.

The full story of precisely why the blockage has occurred and who is responsible has yet to be told. Details emerging from individual cases, including that of the recently returned British resident Shaker Aamer, have indicated that resistance high up in the Pentagon has been a consistent problem.

The previous defense secretary, Chuck Hagel, was in part removed from the post by Obama last November because of his opposition to closing Guantánamo. Yet his replacement, Ashton Carter, has also turned out to be a force of inertia when it comes to driving ahead with the president’s orders. The defense secretary must sign off on all releases from the Cuban detention camp, and both men have demonstrated their anxiety in the context of a new wave of anti-US extremism from Isis and al-Qaida-linked groups.

David Remes, a Washington-based human rights lawyer who represented the first two detainees to be granted PRB hearings, said that he saw the Department of Defense as the most immoveable part of the US government. “DoD is fighting a rearguard action against PRBs and against prisoner transfers. It’s a very powerful bureaucracy.”

State Department and White House officials have hoped that as the population under guard in Cuba is reduced, they can make the argument that the cost per head in US tax dollars is untenable. Officials optimistically hope Congress would come under political pressure to save money and allow the detainees to be housed in a supermax jail on the US mainland – no inmate has ever escaped from one of the high-security prisons.

However, it is not only the Department of Defense that has acted as a drag on closure. The Department of Justice has played its part too, using its authority to foil the release of prisoners that have been ordered by federal courts under habeas petitions.

Justice Department officials are opposing the release of Farek Ba Odah, a Yemeni who grew up in Saudi Arabia, whose prolonged hunger strike has depleted his weight to 74lb and who medical experts have described “on the precipice of death”. A federal court is still deliberating on the case of Ba Odah, who has been cleared for release under the US government’s own procedures since 2009.

“It’s entirely inconsistent to fight in court the detainees who the administration itself cleared six years ago. That’s the administration shooting itself in the foot, not Congress,” said Kebriaei.