Staying Open

01.28.14

Long Odds for Obama’s New Guantanamo Deadline

In his State of the Union Speech, President Obama announced he wants to close Guantanamo Bay, Cuba by the end of the year. But that’s a deadline he's unlikely to meet.

In Tuesday’s State of the Union, President Obama again called for the closing of America’s prison at Guantanamo Bay, adding a new deadline—the end of 2014, when most U.S. troops will leave Afghanistan. But there’s little chance his deadline will be met.

“With the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay,” Obama said.  “Because we counter terrorism not just through intelligence and military action, but by remaining true to our Constitutional ideals, and setting an example for the rest of the world.”

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President Obama promises to "reform surveillance" and close Guantanamo Bay.

The new deadline for closing the prison was the only new foreign policy initiative in the hour-long speech. Senior administration officials said that there was no new policy initiative behind the deadline and no specific new plan to meet it.

But while the deadline is new, this is only the latest example of Obama calling for the closing of the prison while blaming Congress for the facility’s continued operation. Lawmakers involved in the behind the scenes activity relating to the issue have no real expectation Obama will meet his new target date.

Obama first set a one-year deadline for closing Guantanamo on his second day in the Oval Office and signed an executive order meant to make it happen. But the White House abandoned the Congressional Democrats who were fighting in 2009 and 2010 to keep Congress from placing roadblocks in the way of closing the prison.

Senior Democratic lawmakers complained loudly at the time that they received no help from the Administration as they fought unsuccessfully against GOP efforts to add prohibitions on moving Guantanamo prisoners onto U.S. soil to various appropriations bills. Senior Democrats believed Rahm Emmanuel, then the White House chief of staff, was the driving force behind the decision to avoid spending political capital on closing the prison in the first term. Emmanuel believed Obama had more important priorities at the time like healthcare reform.

At the beginning of his second term, Obama doubled down on his promise to close the prison, out of frustration with his failed first-term effort as well as the ongoing public relations fiasco of a hunger strike by a significant number of the remaining prisoners. .

In one of her last acts as Secretary of State, Hillary Clinton wrote a memo urging White House staff to do more to fulfill Obama’s promise to close the prison. “We are throwing the president’s commitment to close Guantánamo into the trash bin,” Clinton told White House aides. “We are doing him a disservice by not working harder on this.”

In April 2013, Obama announced his new plan and blamed Congress for the failure of his old one. In a speech at the National Defense University, he said his 2009 executive order had never been implemented because House Republicans placed funding and legislative restrictions on moving suspected terrorists from the facility. Obama didn’t mention his own administration’s missteps.

Since that speech, the White House has taken some steps towards implementing his new pledge. The administration facilitated the transfer out of Guantanamo some prisoners to third countries, continuing a practice favored by the Bush administration. Last month, the last of the Uighurs, a group of Muslims from the Xinjiang region of China who faced persecution if returned there, left Guantanamo after years of imprisonment.

Obama received some help from Congress in December as well. The latest National Defense Authorization Act gave the administration more flexibility to transfer prisoners to their home countries or a third country. Obama called it “an improvement over current law and is a welcome step toward closing the facility,”

But the law still prevents Obama from moving prisoners to the United States and that is what Obama is asking from Congress now.

Rep. Jim Moran (D-VA), one of the Democratic leaders on the drive to close the Guantanamo prison, told The Daily Beast in an interview Tuesday there’s little chance Congress can or will change that part of the law. Congress hasn’t passed an appropriations bill in years; the budget process is broken and omnibus bills are not subject to votes on specific issues. Also, as far as Moran can tell, the administration hasn’t mounted a legislative drive to convince Congress to change the law through some other method.

“I can’t say they’ve engaged with me or others that I’ve worked with to get that language out,” he said. “They probably looked at the votes and figured the passage of bills was more important than threatening a veto over Guantanamo language.”

Even if the Congressional restrictions were lifted, the administration would have to do several other things before the prison could be closed, said Ken Gude, senior fellow at the Center for American Progress.

The administration would have to find a new place to hold the remaining prisoners and hold the military tribunals to deal with them, which would take time, Gude said. The administration would also have to figure out what do with the more than 80 Yemeni nationals at Guantanamo. Right now there is a moratorium on returning prisoners to Yemen because of security concerns.

“It’s an ambitious goal, but it seems like the White House is serious about this and ready to fight for it,” he said. “It’s clear over the last several months that momentum is building to close the prison, and sometimes the only thing that motivates folks in Washington is to establish deadlines.”

Lawmakers in both parties have gone on the record to say that moving some prisoners to America, those too dangerous to transfer or release, would be a national security risk, said Moran. In an election year, it will be near impossible politically for those lawmakers to switch positions and say they were wrong.

“I can’t blame the administration for not having a lot of confidence in Congress to deliver,” said Moran. “It’s going to be easier to get a minimum wage increase and do immigration reform than to close Guantanamo.”

Other proposals of the President also present legal obstacles for closing Guantanamo. White House is a supporting a repeal of the authorization for the use of military force (AUMF) that was passed before the invasions of Afghanistan and Iraq.  “America must move off a permanent war footing,” Obama said in his address to Congress Tuesday.

But that could also remove the underlying authorization for the detention of prisoners outside regular legal and judicial processes, Moran pointed out.

“If we’re no longer at war in Afghanistan or Iraq it’s a little tough to suggest these are prisoners of war,” he said. “Obama has every reason to push, but I’m not optimistic he’s going to have any more success than he has had over the last five years. And it’s a damn shame.”