Opening Shots Fired in the War Over Guantanamo

WASHINGTON, DC - JANUARY 11: Protesters rally outside of the White House to protest Guantanamo Bay on the 13th anniversary of
WASHINGTON, DC - JANUARY 11: Protesters rally outside of the White House to protest Guantanamo Bay on the 13th anniversary of the first prisoners arriving at the detention facility, in Washington, DC on January 11, 2015. (Photo by Erkan Avci/Anadolu Agency/Getty Images)

Remember the post I had up last week, in which I pontificate that the attacks in Paris that claimed the lives of 17 innocent people had the potential to impact the national security policymaking process here in the United States? Or, to put it more clearly, that the assault in Paris would provide national security hawks in the U.S. Congress (typically Republicans) with a golden opportunity to push a more aggressive U.S. approach to the 13-year war on terrorism?

Well, I don't normally pat myself on the back, but I'm confident to say that my thoughts last week have proven to be correct. Republican lawmakers, most of whom are sincerely disturbed about how the Obama administration is conducting and overseeing U.S. foreign and national security policy, are exploiting the terrorist attacks on Charlie Hebdo in order to strengthen their argument that Washington is still in the middle of an active war on Islamist extremism. To put the message more alarmingly: If it could happen in broad daylight in Paris, it could happen in Washington or New York.

Nowhere was this messaging more clear than on Wednesday, January 14, when Sen. Kelly Ayotte (R - NH) unveiled a bill cosponsored by Senators Richard Burr (R - NC), John McCain (R - AZ), and Lindsey Graham (R - SC) that would stop most prisoner transfers from the Guantanamo Bay detention facility. Ayotte, a freshman senator who has done a good job filling Joseph Lieberman's shoes in the informal club widely know as "The Three Amigos," -- McCain and Graham round out the membership -- spoke of the assault in Paris last week as one of the big reasons why the United States should keep the Gitmo prison up and running. At a time when innocent people are being killed by Islamic extremists in the heart of a western city, Ayotte argued, President Obama needs to seriously reconsider his intentions to unilaterally empty out the facility.

"The barbaric attacks in France underscore the threat posed by Islamist terrorism and the need for a common sense detention and interrogation policy to gather the intelligence necessary to prevent future attack," Ayotte said in a press conference before filing her Guantanamo legislation. "Unfortunately, to fulfill a misguided campaign promise, the administration seems to be more interested in emptying and closing Guantanamo, rather than protecting the national security interests of the United States and the lives of Americans."

Many experts and specialists outside of Congress agree with her prognosis. Danielle Pletka, Vice President of Foreign and Defense Policy Studies at the American Enterprise Institute, told me that Ayotte's legislation is a good way to check the trend that President Obama has exhibited over the past several months in releasing Gitmo prisoners to third countries that are willing to take them in. "Given the way the administration has begun executing transfers," Pletka said, "I think Senator Ayotte¹s legislation makes plenty of sense."

The bill that Ayotte filed last week is patriotically called "The Detaining Terrorists to Protect America Act," a title that captures the essence of what senior Republican senators hope to accomplish with this legislation. The bill is 18 pages long, but boils down to a legislative maneuver that would effectively forbid the White House and Defense Department from moving any prisoner who was at any time assessed to be a medium or high-risk prisoner out of the facility. The bill, however, would do far more than that: It would ruin any slim chance that President Obama had to close the Gitmo prison before he leaves the presidency:

1- No money given to the Defense Department or any other U.S. Government department or agency can be allocated to build detention facilities in the U.S. to house Guantanamo prisoners.

2- No money given to the Pentagon or any other agency in the government can be used to transfer prisoners in Guantanamo to the U.S. for the purposes of incarceration.

3- Any Gitmo prisoner "who is currently or ever has been assessed by Joint Task Force Guantanamo to be a high risk or medium risk threat to the United States, its interests, or its allies" would be forbidden from being released. This essentially keeps the majority of the prisoners in Gitmo for the next two years of Obama's presidency.

4- All Gitmo transfers to Yemen are prohibited. Given the fact that most of the prisoners who have been cleared for release are Yemenis (47 out of 54 detainees who are cleared for release are Yemenis), this prohibition would force the administration to spend time an enormous amount of time negotiating with third-party countries in order arrange the resettlement. And, if any of the Yemenis were declared medium or high-risk threats, the point would be null and void.

5- Before the Defense Secretary could transfer any prisoner out of Gitmo, a written certification would have to be made to Congress 30 days before the detainee can be freed, what the security conditions in the receiving country are like, and whether that country has agreed to monitor the individual to ensure that he isn't re-engaging in terrorism.

6- The Defense Secretary must submit an unclassified report to members of Congress on all of the medium and high-risk detainees still present in Guantanamo, their countries of origin, and whatever prior acts of terrorism the detainees committed against the U.S. or its allies.

Ayotte's bill is the first shot fired on the Gitmo issue this year -- a year that President Obama has promised will include dozens of prisoner releases and a renewed attempt by the administration to get the numbers inside the prison at a level that would make the facility financially unsustainable to keep open. The opening shots, however, are being met with rhetorical gunfire from the administration -- 24 hours after Ayotte introduced her bill, four Gitmo detainees were transferred to Oman and one was transferred to Estonia.

Robert McFadden, a former Deputy Assistant Director of Counterintelligence Operations at the Naval Criminal Investigative Service and now a senior Vice President at the Soufan Group, told me in a brief email interview that "Guantanamo has been a chronically politics-infused issue," that is highly likely to remain a hot-bottom topic over the next year. And President Obama, he told me, will not back down on the issue. "As we all know, the president had closing it [Gitmo] as one of his top priorities (and the previous administration favored a transition to closure), but politics -- namely lack of funding [from Congress] -- intervened," said McFadden. "Thus, the administration is pushing a faster pace for the review boards to recommend detainees for repatriation."

To put it bluntly, the same Guantanamo prison that opened over thirteen years ago is scheduled for a standoff between Obama and the new Republican-led Congress. The the war over Gitmo could very well escalate this year, in part because President Obama believes he is on the right side of history on this debate. "Since I've been President, we've worked responsibly to cut the population of GTMO in half," he said in his State of the Union address. "Now it's time to finish the job. And I will not relent in my determination to shut it down. It's not who we are."