High-ranking members of the Obama administration have all but ruled out the swiftest path to shuttering Guantanamo: unilateral action. | Getty
President Barack Obama’s options for closing the military prison at Guantanamo Bay, Cuba, are shrinking fast, even as the Pentagon prepares for Tuesday’s release of a plan to move some of the remaining inmates to the mainland in a final push to fulfill the president’s 2008 campaign pledge.
High-ranking members of the Obama administration have all but ruled out the swiftest path to shuttering Guantanamo: unilateral action. Attorney General Loretta Lynch acknowledged in November that current law bars the detainees from being moved to the United States. And the president’s top military generals vowed last month not to “take any action contrary to those restrictions.”
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This means that closing the prison would almost certainly require the cooperation of a Republican-controlled Congress, whose leaders don’t share Obama’s condemnation of Guantanamo as a propaganda tool for terrorists. Key lawmakers have made clear their opposition — and there’s little chance they’ll reverse themselves in an election year, even after ordering the Defense Department to offer a plan for how it would carry out a shutdown.
The release of the Pentagon’s much-awaited closure plan highlights how few options Obama really has — short of a court battle that would certainly result if he tried to shutter it on his own. Such a legal fight would most likely drag on well beyond his presidency.
In short, the Guantanamo Bay prison is likely to outlive the Obama administration.
Sen. Tom Cotton, a member of the Armed Services Committee and a leading Republican defense hawk, said nothing in the Pentagon’s plan could convince him it makes sense to close Guantanamo.
“I think it’s a political exercise based on his ideological commitment,” the Arkansas senator told POLITICO. “His own military has said that they don’t have the legal authority to transfer detainees to the United States. And every officer in the United States armed forces takes an oath that does not include a passage about obeying any order, but obeying lawful orders.”
Democratic Sen. Tim Kaine, though, said a plan for closing Guantanamo could help move the conversation forward, even if it doesn’t result in the prison being shuttered before Obama leaves office.
“It’s impossible without a plan,” said the Virginia senator. “It’s hard with a plan. I’m not going to say it’s impossible.”
The Pentagon’s long-awaited plan, required under last year’s National Defense Authorization Act, is expected to separate the remaining 91 prisoners into three categories: those who can be transferred to third countries, those who can be tried in criminal or military courts, and those whom the administration deems too dangerous to release but lacks the evidence to prosecute.
It’s the third group that poses the greatest dilemma. The administration has said it wants to transfer those detainees to maximum-security prisons in the United States, and Pentagon officials have evaluated potential sites including a naval facility in Charleston, South Carolina, the Army-run prison at Fort Leavenworth, Kansas, and the federal supermax penitentiary in Florence, Colorado.
On Monday, GOP senators from those three states issued a joint statement blasting any attempt to transfer detainees to the mainland.
“This plan is expected to present the options for the relocation of Guantanamo, but regardless of whether it is Kansas, South Carolina, or Colorado, none of these options are acceptable,” said Sens. Pat Roberts of Kansas, Tim Scott of South Carolina and Cory Gardner of Colorado. “Our states and our communities remain opposed to moving the world’s deadliest terrorists to U.S. soil. The terrorists at Guantanamo Bay are where they should remain — at Guantanamo Bay.”
They noted that Congress has prohibited federal funds from being used to transfer Guantanamo detainees to the U.S., part of a web of restrictions intended to block the administration from shuttering the facility without lawmakers‘ consent. White House officials have left open the possibility of moving unilaterally to close the prison, citing the president’s authority as commander in chief, but Obama’s own administration and top Pentagon brass have undercut that option.
“At this point in time the current state of the law is that individuals are not transferred from Guantanamo to U.S. shores,” Lynch told the House Judiciary Committee. “It certainly is the position of the Department of Justice that we would follow the law of the land with regard to that issue.”
Lt. Gen. William Mayville Jr., the director of the Joint Staff, reiterated in a letter to Congress that the Joint Staff would abide by the law.
And Defense Secretary Ash Carter told CNN’s Fareed Zakaria last month he didn’t think Obama had the authority to act without getting Congress to change the law.
“It’s against the law now to establish another detention facility,” Carter said. “So, therefore, we have to get the support of Congress.”
Benjamin Wittes, a senior fellow at the Brookings Institution and editor of the blog Lawfare, said he believes Obama “lacks the authority to” close Guantanamo, “and he’s not going to persuade Congress to change the law.”
But any chance of getting lawmakers on board lies with Sen. John McCain, a former Vietnam prisoner of war who is one of the few Republicans to back closing the prison.
The Senate Armed Services chairman has lamented for years that the White House has not been a willing partner or offered up a plan to close the detention facility. The Arizona Republican reiterated in December he remains committed to closing the prison if the administration can put forward a workable plan for doing so.
“I still believe, and I know this is very unpopular with some of my conservative colleagues, that Guantanamo is a symbol to many in the Arab world of Abu Ghraib, of torture, of waterboarding — and I would like to see the place closed,” McCain said at a breakfast hosted by The Christian Science Monitor.
But he was tight-lipped when asked about the forthcoming closure plan on Monday and prospects for a compromise. “For seven and a half years, I’ve said I’ll be glad to see a plan,” McCain said.
The White House and lawmakers who support closing the prison argue it’s no longer cost effective to keep detainees at Guantanamo with less than 100 remaining, and say that the prison, which has been the focus of a series of legal challenges from human rights groups, is a recruiting tool for terror groups.
But opponents reject that argument, and counter that moving Guantanamo detainees to the U.S. would constitute a more direct terrorist threat by making any new facility a target.
Obama has pledged to try to work with Congress to close the prison at Guantanamo Bay, saying in a December news conference that he was “not going to automatically assume that Congress says no” to a White House plan.
In the meantime, the administration has ramped up the transfers of detainees from the detention facility, sending 16 detainees so far this year to foreign countries.
But the several dozen Guantanamo prisoners that the U.S. can’t send to foreign countries strike at the heart of the challenge Obama faces in closing the military prison before he leaves office.
In recent months, former administration officials have suggested Obama has the authority to bypass Congress and close the prison through executive action.
The push has sparked a furious reaction from congressional Republicans, who have threatened to sue the administration should the White House try such a move. House GOP leaders hired a top-tier law firm this month to advise Speaker Paul Ryan on potential litigation over Guantanamo transfers.
And the Pentagon’s examination of potential sites for detainees in the United States has drawn stiff opposition from local lawmakers against bringing Guantanamo detainees anywhere near their states.
“Republicans and Democrats are united on this issue: bringing the inmates housed at Guantanamo Bay to the United States is a nonstarter,” Rep. Lynn Jenkins (R-Kan.) said in a statement.
And Roberts has threatened to block Obama’s Army secretary nominee, Eric Fanning, until he receives assurances from the Obama administration that detainees won’t be sent to Fort Leavenworth.
On the left, Obama also faces criticism for not doing enough to close the prison or tackle the issue of how to handle detainees who aren’t or cannot be charged with crimes. Naureen Shah, director of Amnesty International USA’s Security and Human Rights program, said that if the administration’s plan is simply for a so-called “Guantanamo North” — a prison in the U.S. with the same rules and indefinite detention policies — it’s no better than keeping open the prison at Guantanamo.
“We’re really gratified that President Obama is trying to close Guantanamo down, but that means shutting down indefinite detention altogether, and I’m not sure this plan will get us any closer to that,” Shah said. “If he doesn’t close Guantanamo, it is a stain on his legacy, and he will have to live with that.”
Connor O’Brien contributed to this report.