The White House already is considering using a special
written pronouncement to reject congressional lawmakers’ attempts to limit
President Barack Obama’s authority to transfer inmates from Guantanamo Bay,
Cuba.
The restrictions were included in a massive military
spending bill approved by Congress late last month.
Language contained in the 2011 National Defense
Authorization Act passed by the House and Senate bars the government from using
public money to bring Guantanamo captives to federal court, a measure meant to
limit trials to the Military Commissions in Cuba.
Included in the bill is language that also makes it
virtually impossible to close the prison by building a substitute prison or
relocating prisoners to the United States.
The budget prohibits the use of defense funding “to
construct or modify a facility within the United States to house detainees
transferred from the Guantanamo detention facility” or “to transfer, release or
assist in the transfer or release of Guantanamo detainees to or within the
United States.”
The president views Gitmo as a prime recruiting tool for
Al-Qaeda, and his advisors suggest the president may issue an Executive Order
declaring that Congress overstepped its powers by trying to pick prosecution
venues.
Some supporters of plan Obama announced on his first full
day in office to close the prison said the passage of the legislation signals
near-complete capitulation by the president.
“Obama's original plan is in shambles,” David Remes, an
attorney for 14 Yemeni detainees at Guantanamo, told reporters. “From the
outside it appears to be in shambles because he was never sufficiently
committed to the success of his own plan and, as a result, Republicans were
able to mobilize to turn the issue against him and he provided the
Congressional Democrats no leadership.”
For about a year, senior National Security officials have
struggled with the issue of whether to try alleged Sept. 11 plotters like
Khalid Sheikh Mohammed in a military commission or a civilian court - and, if
so, where. The new legislation seeks to short-circuit that process by leaving
military commissions as the only trial option. Other new requirements in the
legislation could slow or stop transfers from Guantanamo to other countries.
Just this Thursday, the Pentagon sent home from
Guantanamo an Algerian captive who resisted repatriation.
The Pentagon sent Saed Farhi, 49, home as the White House
is deciding what to do about Congress' tough new restrictions on the
administration's effort to empty Guantanamo's prisons.
(Farhi’s lawyers asked that he be resettled elsewhere,
like other Guantanamo captives, because he feared extremist violence in his
native Algeria, and saying he also feared government retaliation for the stigma
of having been held at Guantanamo, even though he had been cleared.)
There are still 174 detainees at Guantanamo, only three
of whom have been formally tried and found guilty as the controversial prison
camp starts its 10th year.
Although a recent Defense Intelligence Agency study on
detainees found that 150 of the Gitmo prisoners released were confirmed or
suspected of returning to terrorism.
President George W. Bush released more than 500 detainees from the
prison.
In recent days Attorney General Eric Holder warned that
the limits could violate the Constitution by intruding on the Executive
Branch's right to make decisions about where prosecutions should be brought.
However, the White House has pointedly refused to say
whether Obama's objection to the Gitmo provisions is so strong that he would veto
the entire defense measure.
Recently, similar Guantanamo restrictions began appearing
in versions of defense bills, omnibus budget legislation, and stopgap spending
measures proposed by Democratic leaders. Sen. Mark Kirk, R-Illinois, said he
was insisting on an airtight ban in order to be assured that an Illinois state
prison the Obama Administration wanted to buy to house Guantanamo prisoners
would only be used for ordinary convicts if the feds acquire it.
Sen. Dick Durbin, D-Illinois, one of Obama's most loyal
allies on Guantanamo and detainee issues, said the restrictions were simply an
acknowledgement of the lack of support in Congress for Obama's approach.
“On the Republican side, you have the politics of fear,
and on the Democratic side you have a fear of politics,” Tom Malinowski of
Human Rights Watch, told reporters.
The rise in the Republicans' strength makes it highly
unlikely that the Guantanamo Bay prison in Cuba will close in 2011.
The new Chair of the House Homeland Security Committee,
Peter King, R-New York, is an outspoken supporter of Guantanamo. Republicans -
and some Democrats - are deeply hostile to transferring detainees to the
US.
On Thursday, two senior Republicans on the Senate
Judiciary Committee said any effort to have civilian trials would “defy the
public will in furtherance of an unwise policy'” and “attack Congress’
fundamental constitutional authority to authorize funds.”
The new rules are in legislation that Obama has until
Monday to sign.
