Obama's Guantánamo plan: a final plea to Congress

President Obama and Congress have never seen eye to eye on closing Guantánamo. But his latest plan is an important shift.

Pablo Martinez Monsivais/AP
President Obama, accompanied by Defense Secretary Ashton Carter, speaks Tuesday in the Roosevelt Room of the White House in Washington to discuss the detention center at Guantánamo Bay, Cuba. The Obama administration released its long-awaited plan to close the detention center and transfer remaining detainees to a facility in the United States.

One of President Obama's first acts in the White House was to order the closure of the Guantánamo detention center in Cuba. Seven years later, the facility remains open, but his latest plea for support from a skeptical United States Congress could lay the groundwork for this elusive policy goal to finally be achieved.

Mr. Obama submitted a plan to Congress Tuesday detailing how his administration would close the infamous detention center, which now holds 91 people, down from 242 when he took office. It also outlines the accelerated transfer of some detainees overseas and moving between 30 and 60 detainees to the US. The administration was required to submit the plan to Congress under last year’s National Defense Authorization Act, but despite meeting its deadline, the plan is unlikely to sway lawmakers in the Republican-controlled Congress, at least in the short term, experts say.

"It shows his willingness to want to move ahead on this, that he wants to work with congressional leaders," says Robert Spitzer, chair of the political science department at the State University of New York (SUNY), Cortland. "That doesn't mean they'll get to an [agreement]," he adds, "but it is a step in the right direction."

Congress has found a rare bipartisan consensus in banning prisoner transfers from Guantánamo to mainland US facilities since 2011, and GOP lawmakers came out in force critiquing Obama’s plan Tuesday. In a joint statement, Republican Sens. Pat Roberts of Kansas, Tim Scott of South Carolina, and Cory Gardner of Colorado – three states with facilities the Pentagon has tabbed as potential options to house Guantánamo detainees – said they would oppose any plan to transfer detainees to the US mainland. 

"Our states and our communities remain opposed to moving the world's deadliest terrorists to US soil," they wrote. "The terrorists at Guantánamo Bay are where they should remain – at Guantánamo Bay." 

What the plan does seem to signal is the White House, at least in the short term, abandoning plans to close the detention center through unilateral executive action. Obama signed an executive order to close the prison in his first month in office, and the administration has refused to dismiss the possibility of closing the prison, transferring some detainees to US facilities in the process, without congressional approval.

Republicans have bristled at the president’s frequent use of executive orders to achieve policy goals on issues like immigration, gun control, and climate change. But with Guantánamo, whether by choice or a lack of legal grounding (both US Attorney General Loretta Lynch and Obama's top military generals have recently suggested the administration can't circumvent Congress this time), he is choosing to work with congressional lawmakers.

"I am very cleareyed about the hurdles to finally closing Guantánamo. The politics of this are tough," Obama said in a press conference Tuesday morning announcing the plan. "Even in an election year we deserve an open, honest, good-faith dialogue."

Raha Wala, a national security expert for Human Rights First, a nonprofit organization that supports the closure of the prison, says the administration's submission has given Congress something substantial to mull and indicates Obama's tack away from executive action.

"The plan I think puts some meat on the bones of a strategy for closing Guantánamo that really should get the attention of members of Congress," he adds. "I would expect that discussion of unilateral executive action to override federal law is likely to fade into distant speculation."

Obama's efforts to work with Congress could give him more negotiating power later this year – most likely after the election in November – to strike a deal with lawmakers that closes the detention center.

The president devoted a significant chunk of his press conference Tuesday to assuaging public concerns about closing the detention center, and that could be part of a longer-term effort to get more public support – or at least less public opposition – for a deal with Congress to close the prison. As of July 2015, a Pew poll showed almost half of America was opposed to closing Guantánamo (49 percent), while 42 percent were for it and 9 percent remained undecided.

In his press conference, Obama attempted to debunk some of the fears around bringing detainees to the US, in part by pointing out that several terrorists – including "underwear bomber" Umar Farouk Abdulmutallab and Boston Marathon bomber Dzhokhar Tsarnaev – have been convicted on terrorism charges in federal courts and are being held in US prisons. 

As the number of detainees dwindles, the pressure to close Guantánamo will also increase. By the end of the summer, there could be fewer than 60 people in the detention center, and as more detainees are transferred, the $400 million-per-year cost of maintaining the facility will become increasingly harder to justify, says Dr. Spitzer of SUNY Cortland.

"Purely as factual matter ... the facility is expensive to maintain, and the American penal system is perfectly capable of handling a few hardened criminals," he adds. "It's hard to marshal an argument in favor of keeping it open now."

Stephen Vladeck, a professor at the American University's Washington College of Law and a Guantánamo expert, wrote in a blog post that the outcome of November’s election could be pivotal, especially if Obama's best-case scenario – Democrats retaining the White House and retaking the Senate – is realized. 

"It's not that hard to imagine that a President committed to closing Guantánamo before January 20 would find a somewhat more receptive audience in the lame-duck, Republican-controlled Congress that goes out of business on January 3," he writes.

For now, Obama has emphasized that he is "absolutely committed" to closing Guantánamo.

"We recognize this is going to be a challenge, and we're going to keep making [our] case to Congress," he said. "I really think there's an opportunity here for progress. I believe we’ve got an obligation to try."

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