Will Congress Put Obama’s Push To Shutter Gitmo on Lockdown?

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"You are our commander in chief," a heckler yelled at President Obama during a speech earlier this year at the National Defense University. "You can close Guantanamo Bay."

Obama used to think so, too. In the run-up to the 2008 election, the presidential nominees from both parties called for the controversial American prison on Cuban soil to be shuttered. But when Obama took office and signed an executive order in January 2009 to close Gitmo within a year, he conversely renewed the issue as a political fight between the White House and Congress and among legislators.

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Photos: U.S. Army Sgt. Sara Wood / U.S. Defense Department
The cellblock of a typical ward is seen in Camp Delta of the Guantanamo Bay detention center, where 166 detainees remain in legal limbo — taken into custody in the aftermath of the 9/11 terrorist attacks 12 years ago this month.

More than four years later, 166 detainees remain at Guantanamo — taken into custody during the Bush administration in the aftermath of the 9/11 terrorist attacks 12 years ago this month. More than half of them are in the midst of a months-long hunger strike, which guards have dealt with by strapping them into chairs so nutrients can be pumped into their nostrils. The protest has refocused attention on the prison, which stands as a bitter reminder of how many of the policies that sprang up after 9/11 — the very ones that Obama railed against during his historic charge to the White House — persist today with no clear end in sight.

Obama's address at the National Defense University in May was meant to signal that he remains committed to reining in what he called a "boundless global war on terror." At the end of the wide-ranging counterterrorism speech that covered military tactics abroad and civil liberties at home, Obama listed the steps he'd take to end the Gitmo era once and for all, while continuing to blame the prison's stubborn endurance on intransigence in Washington.

"[The detention center] has become a symbol around the world for an America that flouts the rule of law. Our allies won't cooperate with us if they think a terrorist will end up at Gitmo," he said. "During a time of budget cuts, we spend $150 million each year to imprison 166 people — almost $1 million per prisoner. And the Department of Defense estimates that we must spend another $200 million to keep Gitmo open at a time when we're cutting investments in education and research here at home, and when the Pentagon is struggling with sequester and budget cuts."

This, he said, was the fault of lawmakers on Capitol Hill.

"I transferred 67 detainees to other countries before Congress imposed restrictions to effectively prevent us from either transferring detainees to other countries or imprisoning them here in the United States," he said. "There is no justification beyond politics for Congress to prevent us from closing a facility that should have never been opened."

Bipartisan Blame Game

It's true that Congress has repeatedly stymied Obama's efforts to close Gitmo. In 2010, there was a Republican uproar after the administration said it wanted to relocate captives to a vacant prison in Illinois and to have 9/11 plotter Khalid Sheikh Mohammed appear before a New York federal court.

The outcry ignored the fact that the United States has successfully convicted scores of high-profile terrorists in civilian courts (in contrast, the military tribunals at Gitmo have barely convicted a handful of prisoners). More than 200 international terrorists are also locked up in U.S. jails, including 9/11 co-conspirator Zacarias Moussaoui, who'll spend the rest of his life in a super-max prison in Colorado. (Illinois officials were eager to develop a similar facility because of the economic boost it would've provided their state.)

Testifying before the Senate last month, Rep. Adam Smith (D-Wash.), the ranking Democrat on the House Armed Services Committee, called it "stupefying ... the degree to which people seem unaware of the fact that we already hold hundreds of terrorists in United States super-max prisons."

Smith also called Gitmo a boondoggle that has cost taxpayers $4.7 billion since it opened in 2002. "The Department of Defense is spending $454.1 million on total costs for Guantanamo Bay detention operations in 2013, which is about $2.7 million per detainee, compared to the average figure of $34,046 required to hold a prisoner in a maximum security federal prison in the United States," he said.

"The facilities at Guantanamo Bay were designed to be temporary and are rapidly deteriorating, requiring new temporary construction," Smith added.

Nevertheless, since 2010 Congress has used its spending authority to block Guantanamo detainees from being tried or sent to prisons on U.S. soil.

But Capitol Hill isn't the only source of the current impasse.

Some critics say the Obama administration has been reluctant to take advantage of special waivers to transfer detainees, fearful of sticking its neck out and suffering the consequences should something go wrong once the prisoners are released. But if Obama isn't willing to incur liability, they say, then his latest pledge to close Gitmo is just more empty rhetoric, an echo of a similar high-profile speech he made at the National Archives in 2009. Others contend that the president hasn't offered any concrete plan to back up his lofty talk.

"It's one thing to say you're going to do it," Sen. Bob Corker (R-Tenn.) told an audience at the Woodrow Wilson Center in June. "People on both sides of the aisle are open and willing," said the ranking member of the Senate Foreign Relations Committee. "We'd just like to see the plan, OK?"

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Inmates walk around the Guantanamo Bay detention center.

Obama did offer a detailed outline for how to transfer detainees either to ultra-secure detention facilities in the United States or to foreign countries in 2009, when he appointed Daniel Fried as the State Department's special envoy tasked with closing Guantanamo. Although the option of sending detainees to the U.S. was slapped down, Fried was able to arrange for 42 prisoners to be resettled in 18 third-party countries and for another 29 to be repatriated to their homelands. This was not a new approach at the time, as more than 500 detainees were transferred out of Guantanamo under President George W. Bush.

But after Congress imposed strict new restrictions on the transfers in the 2012 National Defense Authorization Act, the effort ground to a halt. Only four detainees have been relocated since the requirements took effect, according to the State Department. Fried left his post at the beginning of this year.

In the meantime, prisoners have been left in legal limbo even though many have been cleared for transfer, often since the Bush administration. Dozens, in fact, are still being held even though in some cases they are no longer accused of crimes against the United States and their lawyers say other countries have offered to accept them.

This category of detainees is one of several distinct groups among the 166 who remain at the prison. Eighty-six detainees have been cleared for transfer to either their home country or to third-party countries. Forty-six are being held because they're deemed serious threats to U.S. national security, but it's unclear whether they could be successfully prosecuted, sometimes because evidence was obtained through harsh interrogations that might have been illegal. Another 32 detainees have been referred for prosecution. There are two prisoners who have been convicted and are serving out their sentences at Guantanamo.

J. Wells Dixon, whose organization, the Center for Constitutional Rights, offers legal representation to eight current detainees, said there's plenty of blame to go around for the convoluted detention policy.

"Look, Congress has interfered with the president's desire to close Guantanamo, that's obvious," he said in July. "On the other hand, Congress did give the president some limited power to transfer individuals, and he simply hasn't used that authority."

Andrea Prasow, a lawyer at Human Rights Watch who focuses on counterterrorism, seemed to sum up the frustration when she spoke to The Diplomat this summer.

"People spend a lot of time saying the president says Congress has prevented him from closing it, and Congress says the president hasn't taken any action," Prasow told us. "It's time for people to just do something. Act. Move forward."

Tepid Momentum

After months of being stuck in the mud, the mission to close Guantanamo might just be moving forward, both because Obama has shown he'll throw some weight behind the issue and because prominent members of Congress have signaled a willingness to provide him with room to maneuver.

In June, Obama appointed Cliff Sloan, a well-regarded Washington lawyer who served in the administrations of Bill Clinton and George H.W. Bush, to replace Fried as special envoy for transferring approved detainees out of Guantanamo. Sloan will work with an envoy from the Pentagon who, as of press time, had not yet been named.

In July, the Pentagon also said it would begin setting up parole-style "periodic review boards" that would hear the cases of 71 eligible detainees. These panels were actually announced years ago, but creating them stalled for so long that the impetus seemed to evaporate.

And in his recent counterterrorism speech, Obama said he'd lift a moratorium on transferring detainees to Yemen that was put in place after the upheaval of the Arab Spring and the attempted 2009 bombing of a Detroit-bound airliner by a young Nigerian who was trained in Yemen. More than half of the remaining prisoners at Guantanamo are Yemeni citizens, including the bulk of the 86 detainees who've been cleared for release.

But the recent security threats emanating from Yemen — which contributed to the decision to shut down U.S. diplomatic missions across the Middle East last month — could jeopardize those plans.

"Since it's now well known that Yemen-based al Qaeda is actively plotting against us, I don't see how the president can honestly say any detainee should be transferred to Yemen," Sen. Saxby Chambliss of Georgia, the ranking Republican on the Senate Intelligence Committee, said in a statement last month.

Concerns about repatriating detainees to nations where they could return to the battlefield are nothing new. There would be serious blowback from any terrorist incident involving a former Gitmo prisoner — and in a sense, Congress has helped to ensure that the repercussions would land squarely on the administration.

Signing Off on Disaster?

The 2012 National Defense Authorization Act bars almost all Gitmo transfers unless they receive a special waiver from a senior administration official — and that unenviable task falls on Secretary of Defense Chuck Hagel, potentially placing him in an extremely vulnerable position. If he were to sign off on a detainee who was later linked to a terrorist attack, the defense secretary would be on the hot seat — again — just like he was during his contentious confirmation hearings.

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Camp 6, the newest facility at the Guantanamo Bay detention center, is designed after a maximum-security prison in the United States. Congress has barred the administration's efforts to relocate Gitmo prisoners to U.S. soil.

"Congress decided to make this a very political issue and required someone to take personal responsibility for each transfer," said Prasow. "The person that they're holding responsible is the secretary of defense."

Clearly, the political risks are immense, especially as the administration relies on Hagel to help it wind down the war in Afghanistan. Dixon seemed to acknowledge as much, but he said that if Obama is committed to closing Guantanamo, he must make use of the options available to him.

"He should pick up the phone and call Secretary of Defense Chuck Hagel and tell him to certify transfers for approved detainees," said the lawyer, who made a special plea for Djamel Ameziane, his client who has been in the detention facility for 11 years — and cleared for release by the Pentagon since the end of the last presidency. (Ameziane's case illustrates a common dilemma for detainees and the Obama administration: A resident of Montreal, Ameziane wants to be returned to Canada and not to his native Algeria, where he fears persecution, but Canada has been reluctant take him.)

"It's very likely that, given politics, Congress will beat [Obama] over the head with it, so he just seems unwilling to engage in that dispute," Dixon said, offering a soupçon of empathy for the president's predicament while lamenting his reluctance to use the special waivers. "He seems unwilling to do what is necessary politically to actually effect the closure of the prison."

When The Diplomat contacted the White House in July to ask when Gitmo transfers would resume, Laura Lucas, a spokeswoman for the National Security Council, responded that "the president has directed the administration to transfer detainees when possible, and we are actively pursuing that."

"However, the extremely restrictive nature of current legislation severely limits the transfer process," Lucas said.

Even Obama's Republican opponents admit the issue is pocked with pitfalls. When The Diplomat asked a senior GOP congressional staffer involved in the defense bill negotiations why the waivers have collected dust, the staffer said "there are real challenges in keeping very dangerous people from re-engaging" — alluding to the difficulties of monitoring and managing detainees in poverty-wracked, poorly governed nations such as Yemen.

"There are no easy answers, and if you get it wrong it comes at a very high price," said the staffer.

Senate Support

But those waivers granted to the administration weren't easy to come by, either, and the people who orchestrated them — chiefly, Sen. Carl Levin (D-Mich.) — say they don't want their efforts wasted.

"I recognize that Congress has made the process of relocating Gitmo detainees to third countries more difficult by imposing certification requirements on such transfers," Levin, chairman of the Senate Armed Services Committee, wrote in a letter to the White House this spring. "However, more than a year ago, I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition."

Shortly after the letter, Obama got a congressional boost when Sen. John McCain (R-Ariz.) and Sen. Dianne Feinstein (D-Calif.) traveled to Guantanamo with White House chief of staff Denis McDonough in June.

"We continue to believe that it is in our national interest to end detention at Guantanamo," they said in a joint statement. "We intend to work, with a plan by Congress and the administration together, to take the steps necessary to make that happen."

While the House recently passed a 2014 defense bill that keeps the strict provisions on transferring detainees in place, the bill coming out of the Senate Armed Service Committee contains new language that would ease the restrictions, reflecting Levin's sway.

Feinstein told The Diplomat that she is "highly supportive" of revamping the policy to make it easier to transfer detainees.

"I think the time has come," said Feinstein, chairwoman of the Senate Intelligence Committee. "I wish every member would spend the time to go down [to Guantanamo] and take a look. It does not befit America."

Levin told The Diplomat that he would try to keep the new rules in whatever bill is finally passed by the full chamber, though he said it was "way too far down the line" to forecast what might happen and conceded it would be an uphill battle.

"Hopefully, we can persuade some of the folks who are on the fence maybe that we ought to keep these provisions that give greater flexibility to the president," Levin said. "The people who opposed the provisions indicated that they were going to make their stand on the floor, so we expect that there will be a major effort," he said, noting the bill could face filibustering.

House Rejection

The House has already rebuffed the administration's latest drive to close Guantanamo, passing a $600 billion defense bill that not only maintains the restrictions on transferring detainees, in particular to Yemen, but even allocates nearly $250 million in construction upgrades for prison facilities at Gitmo.

Claude Chafin, spokesman for the House Armed Services Committee, chaired by Rep. Buck McKeon (R-Calif.), told The Diplomat that McKeon had sent four letters over the past two years to the White House offering to discuss detainee policy but none received a response.

"It's just a political game," McKeon told the New York Times this spring. "They like to point to this as our intransigence, but we have worked with them."

Even though McKeon is generally seen as an obstacle to transferring detainees, he has publicly said that he doesn't rule out the possibility of easing restrictions or even shuttering Guantanamo.

"If the president is serious about a renewed effort to close the facility, he should seize the opportunity and send up his plan," McKeon wrote in a May letter to the Washington Post.

On July 24, a plan is what Congress finally got, according to the Daily Beast, which reported that the White House sent a two-page memo to the Senate on how it intended to close Gitmo hours before the chamber's first hearing on the facility in years.

"The difference between 2009 and 2013 is the administration now has a plan," McCain told Bloomberg.

A few days later, the administration announced it would be transferring two Algerian detainees — the first transfers since last year.

Reconciling Differences, And Cementing a Legacy

Earlier this summer, before the two new transfers had been announced, Prasow said this is precisely the bold action that would be required for Obama to show he means business.

"If the president is really serious about closing Guantanamo," Prasow said at the time, "send a couple detainees home in the next month or two. Make it clear that he's moving forward. And then tell Congress exactly what line needs to be changed to make certification easier to grant in the future."

Prasow also predicted that the conference committee process may indeed allow more flexible certification requirements to be included in the final defense authorization act. Traditionally, the chairs and ranking members of the respective armed service committees in both chambers are the ones who reconcile the two versions of the defense bill, which means that McKeon and Levin will get to hash out the final legislation, presumably sometime this fall.

"This is where McKeon may budge," Prasow said. "He may be more amenable to certain provisions such as allowing transfers to the U.S. for certain medical purposes, possibly for trials. I think he's trying to be realistic and I think he recognizes that there has been a shift.

"Now that there is some distance from the horror of 9/11, Americans are starting to see that we have an existing legal system that is relatively flexible," Prasow said. "We don't have to think that some suspected terrorist is so different and so unique that our existing system can't handle him."

Prasow also said she has long believed that Obama would make a strong push to close Guantanamo at this point in his second term because he retains significant political capital and the 2014 midterm elections are still more than a year away.

How much force he can muster, and how much risk he can stand, remains to be seen. But advocates like Prasow can take heart in knowing that Obama's legacy is tightly bound to this issue — something he seemed keenly aware of during his speech at the National Defense University.

"I know the politics are hard," Obama told the audience. "But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it."


About the Author

Luke Jerod Kummer is the congressional correspondent for The Washington Diplomat.

Last Edited on August 28, 2013

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