From The Wall Street Journal
The White House is drafting options that would allow President Barack Obama
to close the detention facility in Guantanamo Bay, Cuba, by overriding a congressional ban on bringing detainees to the U.S., senior administration officials said.
Such a move would be the latest and potentially most dramatic use of executive power by the president in his second term. It would likely provoke a sharp reaction from lawmakers, who have repeatedly barred the transfer of detainees to the U.S.
The discussions underscore the president’s determination to follow through on an early campaign promise before he leaves the White House, officials said, despite the formidable domestic and international obstacles in the way.
Administration officials say Mr. Obama strongly prefers a legislative solution over going around Congress. At the same time, a senior administration official said Mr. Obama is “unwavering in his commitment” to closing the prison—which currently has 149 inmates detained in connection with the nation’s post-9/11 war on terrorism—and wants to have all potential options available on an issue he sees as part of his legacy.
The White House has sought to make executive actions a centerpiece of its policy agenda, in areas including the minimum wage, antidiscrimination rules and, potentially, immigration. House Republicans, in response, are seeking to sue Mr. Obama, saying he overstepped his legal authority in bypassing Congress.
Unilateral action “would ignite a political firestorm, even if it’s the best resolution for the Guantanamo problem,” said American University law professor Stephen Vladeck. Republicans are sure to oppose it, while Democrats could be split, he said.
White House officials have concluded Mr. Obama likely has two options for closing Guantanamo, should Congress extend the restrictions, which it could do after the midterm elections.
He could veto the annual bill setting military policy, known as the National Defense Authorization Act, in which the ban on transferring detainees to the U.S. is written. While the veto wouldn’t directly affect military funding, such a high-stakes confrontation with Congress carries significant political risks.
A second option would be for Mr. Obama to sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief, as he has done previously. Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.
The core obstacle standing in the White House’s way is Congress’s move in 2010 to ban the transfer of Guantanamo detainees to the U.S. That legislation was passed after the administration sparked a backlash when it proposed relocating detainees to a maximum-security prison in Thomson, Ill.
The administration hopes to tamp down controversy by reducing the inmate population by at least half through quickly transferring Guantanamo detainees cleared for release.
On Thursday, Estonia, which Mr. Obama visited last month, announced it would accept one detainee. Officials said additional transfers are in the works.
“We are very pleased with the support from our friends and allies, and we are very grateful to them,” said Clifford Sloan, the State Department envoy for Guantanamo closure.
Nonetheless, administration officials say the detention center can’t be closed without sending at least some of the remaining inmates to the U.S. mainland.
Mr. Obama said in his 2014 State of the Union address that “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay.” The president now expects to miss that deadline, administration officials say, a departure from earlier this summer when White House aides were still saying it was possible.
Mr. Obama’s decision in May to exchange Guantanamo detainees for an American prisoner of war, Sgt. Bowe Bergdahl, without the required 30-day advance congressional notice drew a backlash on the Hill. The start of a U.S.-led fight against the Islamic State militant group has similarly overshadowed any appetite for a repeal of the ban.
A Gallup poll released in June said 29% of Americans support closing the detention center at Guantanamo Bay and transferring detainees to U.S. prisons, while 66% oppose the idea.
Most of the nearly 800 men held at Guantanamo since it opened in 2002 were released during the George W. Bush
administration. Of the 149 who remain, 79 have been approved for transfer by national-security officials but remain because of political or diplomatic obstacles in repatriating them.
Another 37 have been designated for continued detention without trial. These are men considered too dangerous to release, yet against whom the government lacks usable evidence. A further 23 have been referred for prosecution by military commission, where 10 detainees, including Khalid Sheikh Mohammed and four co-defendants accused of orchestrating the Sept. 11 attacks, are in pretrial hearings.
Officials, who declined to say where detainees might be housed if taken to the mainland, said the U.S. has ample space in its prisons for several dozen high-security prisoners. The administration has reviewed several facilities that could house the remaining detainees, with the military brig at Charleston, S.C., considered the most likely.
Since winning re-election, Mr. Obama has made several moves designed to speed the prison’s closure. He named envoys at the State and Defense Departments to help secure the transfer of detainees to foreign countries. He lifted the administration’s moratorium on sending detainees to Yemen, which counts 58 nationals among those cleared for transfer.
Part of the administration’s strategy for reducing political opposition to lifting the ban on transferring detainees is to whittle the number in Guantanamo to the point where the cost of maintaining the installation is unpalatable. The annual cost per inmate is $2.7 million, in contrast with $78,000 at a supermax prison on the mainland, officials say.
“As the number becomes smaller at Guantanamo, the case for domestic transfers…becomes that much stronger,” a senior administration official said.
Prisoner transfers to foreign countries have slowed this year. A transfer of six Guantanamo Bay prisoners to Uruguay is tied up in that country’s Oct. 26 presidential elections. The current president has agreed to accept the detainees, while his opponent has said he wouldn’t.
Before the swap that led to Sgt. Bergdahl’s release, the administration completed the transfer of 12 detainees, a senior administration official said. No detainees have been transferred since.
The U.S. requires countries to meet certain criteria before allowing them to accept detainees. Countries, for instance, must provide the U.S. with assurances that the detainees won’t return to the battlefield and will be treated humanely. Many of the countries willing to take detainees are European, including France, Germany, Spain, Portugal, Latvia and Slovakia. But there are a growing number in South and Latin America.