Despite President Barack Obama's new vow, closing the Guantanamo Bay prison is still a tough sell in Congress. So the White House may look instead toward smaller steps like transferring some terror suspects back overseas.
Shutting down the prison at the U.S. naval base in Cuba is a goal that has eluded Obama since he took office. In his first week, he signed an executive order for its closure, but Congress has used its budgetary power to block detainees from being moved to the United States.
Now, with 100 of the 166 prisoners on a hunger strike in protest of their indefinite detention and prison conditions, Obama is promising a renewed push before Congress and has ordered a review of his administrative options. The White House is acknowledging its process to review prisoner cases for possible release has not been implemented quickly enough and says the president is considering reappointing a senior official at the State Department to focus on transfers out of the prison.
Guantanamo had slipped down the agenda of the president who promised to close it during his campaign five years ago but has transferred few prisoners out in recent years. Conditions at the camp are tense, with 23 prisoners who are in danger of starving themselves now being force-fed through nasal tubes and some 40 naval medical personnel arriving over the weekend to deal with the strike that shows no sign of ending. While the global community has pressured the United States to shut Guantanamo, most of the American public and their representatives in Congress have been opposed to removing the terror suspects from their isolated captivity.
“Guantanamo is not necessary to keep America safe,” the president argued at a White House news conference Tuesday. “It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”
Obama's comments revived an issue that hasn't been prominent in recent political debate, with some of the most recent national polling more than a year old. An ABC News/Washington Post survey in February 2012 found 70 percent of the public approving of keeping the prison open and a quarter disapproving. Five percent had no opinion.
Sen. Lindsey Graham, R-S.C., a leading opponent of closure, responded to Obama's latest call by citing last year's administration report that 28 percent of the roughly 600 released detainees were either confirmed or suspected of later engaging in militant activity.
“They're individuals hell-bent on our destruction and destroying our way of life,” Graham said in a statement. “There is bipartisan opposition to closing Gitmo.”
Republicans and several Democrats have repeatedly blocked efforts by Obama to take the initial steps toward closure. The law that Congress passed and Obama signed in March to keep the government running includes a longstanding provision that prohibits any money for the transfer of Guantanamo detainees to the United States or its territories. It also bars spending to overhaul any U.S. facility in the U.S. to house detainees.
That makes it essentially illegal for the government to transfer the men it wants to continue holding, including five who were charged before a military tribunal with orchestrating the Sept. 11 attacks. But that doesn't mean the administration's hands are completely tied.
Eight-six prisoners at Guantanamo have been cleared for transfer to other countries. Such transfers were common under President George W. Bush and at the beginning of the Obama administration. They stopped after Congress imposed new security restrictions over concerns that some prisoners might be released by foreign governments and return to the battlefield.
The administration could get around the restriction by issuing a national security waiver through the Pentagon, something it hasn't done so far.
Obama signed an executive order two years ago establishing review procedures for detainees to determine if continued detention was warranted, beginning with hearings before an interagency Periodic Review Board. The order required the reviews to begin by March 2012, but the administration has yet to announce any hearings.
Obama spokesman Jay Carney said Wednesday that the administration plans to get the board running, “which has not moved forward quickly enough.” He also said Obama is considering the reappointment of a special envoy for closing Guantanamo at the State Department, responsible for trying to persuade countries to accept inmates approved for release. The former envoy, Ambassador Daniel Fried, was reassigned earlier this year and not replaced.
But Carney said help from Congress is needed to close the prison. “We have to work with Congress and try to convince members of Congress that the overriding interest here, in terms of our national security as well as our budget, is to close Guantanamo Bay,” Carney said.
House Armed Services Chairman Howard “Buck” McKeon, R-Calif., objected to Obama blaming Congress. “The president faces bipartisan opposition to closing Guantanamo Bay's detention center because he has offered no alternative plan regarding the detainees there, nor a plan for future terrorist captures,” McKeon said in a statement.
A tough issue is where to send detainees cleared for transfer, particularly the majority who are Yemeni nationals. Obama has banned the transfer of Guantanamo detainees to Yemen since January 2010 because of security concerns after a would-be bomber attempted to blow up a U.S.-bound flight on instructions from al-Qaida operatives in Yemen.
Senate Intelligence Chairwoman Dianne Feinstein, D-Calif., who initially supported the suspension of transfers to Yemen, wrote the White House last week urging reconsideration of that policy as part of a renewed effort to transfer all 86 of the cleared detainees. Obama spokesman Carney said Wednesday the Yemen moratorium was among the Guantanamo policies under review.
Vijay Padmanabhan, who was a State Department lawyer responsible for Guantanamo-related cases in the Bush administration, said Obama faces three major questions to achieve his goal of shutting Guantanamo. Padmanabhan said Obama needs to figure out what level of risk he's willing to accept in Yemen, come up with a strategy for prosecuting detainees and determine how to handle those who are considered dangerous but for whom there isn't sufficient evidence for prosecution.
Obama said Tuesday, “The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.” Padmanabhan saw that as a potential shift in Obama's thinking.
“He's always supported the idea that you should be able to nevertheless detain people indefinitely as combatants,” said Padmanabhan, now a professor at Vanderbilt Law School. “For the first time, he's challenging a little bit that later proposition. He's suggesting that maybe it's the case we should be thinking about whether we should be detaining anyone that we aren't capable of prosecuting for the rest of their life.”
Resuming transfers through the waivers could help ease some of the despair among the men held at the U.S. base in Cuba, said Jennifer Daskal, a fellow and adjunct law professor at Georgetown University who worked on an Obama administration task force addressing detainee policy issues. The administration could also increase its efforts to find other countries willing to accept Guantanamo prisoners and begin reevaluating whether it's possible now to release any of the 46 men who are slated for indefinite detention, Daskal said.
“The idea that it could be closed tomorrow is completely unrealistic,” she said. “But there certainly are things that the administration can do even without congressional action that would begin the process of at least winnowing down the numbers at Guantanamo and hopefully alleviating some of the tension.”