Senate Blocks One Of The Last Pathways To Closing Guantanamo

If the president wants to close the prison, he'll likely have to do it using executive action.
President Barack Obama is running out of time to close the Guantanamo Bay detention facility before the end of his term.
President Barack Obama is running out of time to close the Guantanamo Bay detention facility before the end of his term.
Brennan Linsley/Associated Press

WASHINGTON -- The Senate has closed one of the last remaining pathways for President Barack Obama to fulfill a campaign promise to close the Guantanamo Bay prison facility in Cuba.

The Senate voted 91-3 to approve the National Defense Authorization Act on Tuesday. The defense authorization bill contains legal obstacles to closing the prison, including a prohibition on using funds to transfer the prisoners to the U.S. or to build facilities to house them in the future.

Because this is the president’s last year to close Guantanamo, provisions about the prison were once expected to be the center of a charged debate in Congress. But even lawmakers who support closing Guantanamo made little mention of the notorious prison facility after casting their votes.

Sen. Chris Coons (D-Del.), a close ally of the president, touted the defense authorization as “an important piece of legislation that helps make sure our troops have what they need to protect and promote our interests around the world.” Coons predicted the bill “will soon be signed into law by President Obama.”

Almost immediately after Tuesday's vote, White House spokesman Josh Earnest said the president would not veto the bill, which now has a veto-proof majority in both chambers of Congress.

Asked if the president will use executive action to close the prison, Earnest hedged. "Our focus right now is on trying to get Congress to consider the proposal we put forward," he said.

But, he added, "Certainly, on a range of issues, I'm going to protect the ability of the president to use his authority to move the country in the direction he believes it should be headed. Particularly when it comes to an issue like closing the prison at Guantanamo Bay. The president feels strongly about that."

Obama vetoed a previous version of the defense authorization last month, citing lawmakers’ reliance on wartime spending account to offset spending cuts, as well as provisions that would block the administration from transferring Guantanamo detainees to the U.S.

The bill in its original form, argued Obama, “impeded our ability to close Guantanamo in a way that I have repeatedly argued is counterproductive to our efforts to defeat terrorism around the world.”

The president had threatened to veto the defense authorization bill for the past four years over its Guantanamo provisions, but, until this year, he'd always relented and signed the bill.

Last month, lawmakers reached a deal to cut $5 billion from the defense authorization bill, resolving one of the president’s key objections to it. But they left the restrictions on transferring Guantanamo detainees to the U.S. in place -- effectively challenging Obama to prove his commitment to shutting down the prison.

If the president is concerned about the legal hurdles to closing Guantanamo before he leaves office, he’s not showing it. Earnest reiterated Obama’s opposition to the restrictions on prison transfers, but stopped short of threatening another veto on the revised defense authorization in the lead-up to the vote.

It’s clear Democrats didn't feel the heat from the president to vote down this bill. Even lawmakers who have advocated the need to close Guantanamo -- like Reps. Adam Smith (D-Wash.) and Jackie Speier (D-Calif.) in the House, and Sens. Dianne Feinstein (D-Calif.) and Tim Kaine (D-Va.) in the Senate -- voted in favor of the new defense bill.

“We are following the White House’s lead,” explained a Democratic House aide. “The White House has not indicated that they will veto the new conference report over Guantanamo -- the broader concern is for the armed services to be able to plan. But by no means does that mean the fight over Guantanamo is over.”

Sen. Ron Wyden (D-Ore.), one of just three senators to vote against the NDAA, cited the Guantanamo restrictions as one of his reasons for not backing the bill.

Human rights advocates, who’ve held out hope that Obama would aggressively pursue Guantanamo closure, have been dismayed by congressional Democrats' lackluster lobbying.

“It comes down to, 'Is this president willing to treat this like the Iran deal or TPP?'” said Raha Wala, senior counsel for defense and intelligence at Human Rights First, referring to two other high-priority items on Obama’s foreign policy agenda. “If he does, the votes will be there. If he doesn't, Democrats aren’t going to stick their necks out."

Voting down the defense authorization the day before Veterans Day isn’t a popular move, even for lawmakers who are in favor of closing Guantanamo. When Obama vetoed the first version of the defense bill last month, a press release from then-Speaker of the House John Boehner (R-Ohio) featured the headline, “Obama to Our Troops: Take Your Pay and Shove It.”

There are currently 112 prisoners at Guantanamo, 53 of whom are cleared for transfer to another country. The White House is expected to present Congress with a plan for Guantanamo's closure, potentially by the end of this week.

Of the 59 detainees who are not cleared for transfer, seven are currently facing charges in Guantanamo Bay's war court. The White House is likely to refer other prisoners for prosecution. But, as Earnest acknowledged last week, there is an “irreducible minimum” -- men who cannot be charged with a crime but whom the Obama administration deems too dangerous to release. By the Miami Herald’s count, there are 27 of these “forever prisoners.”

The White House aims to transfer them to U.S. prisons -- a move that is illegal under the current defense authorization requirements. But the Pentagon has already toured federal and military facilities in Colorado, South Carolina, and Kansas that could serve as potential replacements for the Guantanamo Bay prison.

The now vacant Colorado State Penitentiary II has 948 single-cell beds and has been floated as a possible place to transfer Guantanamo detainees.
The now vacant Colorado State Penitentiary II has 948 single-cell beds and has been floated as a possible place to transfer Guantanamo detainees.
Brennan Linsley/Associated PRess

If the Obama administration still plans to work with Congress to close Guantanamo, the White House will have to convince Democrats and a significant chunk of Republicans to undo their own legislation. Senate Armed Services Committee Chairman John McCain (R-Ariz.), a key potential Republican ally in the effort to close the notorious prison, says it’s too late.

“It’s just unbelievable to me that all I’m asking for is a plan I can try and sell to my colleagues,” McCain told Defense One. “And they refuse to send one, and then they complain about the fact that we’re not closing Guantanamo? It’s hypocrisy.”

But it's still possible the White House will make a unilateral move to transfer Guantanamo detainees stateside, relying on the fact that it will be difficult for the next president -- Democrat or Republican -- to send prisoners back to Guantanamo Bay.

Former White House Counsel Gregory B. Craig and the former special envoy for Guantanamo closure, Cliff Sloan, say it is within Obama’s authority to sidestep Congress on Guantanamo and that the legislative ban on transferring prisoners to the U.S. is an unconstitutional infringement on separation of powers.

“The determination on where to hold detainees is a tactical judgment at the very core of the president’s role as commander in chief, equivalent to decisions on the disposition of troops and the use of equipment,” Craig and Sloan wrote in an op-ed in The Washington Post last week. “The question here is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held. The answer is an emphatic no.”

The White House has been careful to avoid a direct threat of executive action on Guantanamo, aware of the backlash it would spark within Congress. But Earnest has left the door open. “I’m not aware of any ongoing effort to devise a strategy using only the president’s executive authority,” he said during a press briefing on Monday. “But I certainly wouldn’t, as I mentioned last week, take that option off the table.”

Jen Bendery contributed reporting.

This story has been updated to include Josh Earnest's statement that Obama would not veto the bill and a tweet from Sen. Ron Wyden.

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