President Barack Obama's last-ditch effort to follow through on a pledge he first made as a presidential candidate and memorialized in an executive order he signed days after he was sworn into office was finally laid bare Tuesday. In a nine-page closure "plan" submitted to Congress, Obama presented his outline for the shuttering of the detention facility at Guantanamo Bay.
The long-awaited plan was a year in the making, went through at least one revision, and was mandated by Congress in an annual defense-spending bill signed into law by Obama last December. That bill, known as the National Defense Authorization Act (NDAA), specifically prohibits the administration from using any funds to transfer Guantanamo detainees to the US for detention or prosecution or to "construct or modify any facility in the United States, its territories, or possessions to house any Guantanamo detainee."
But other than updated cost savings — the main selling point to Congress — for housing Guantanamo detainees in detention facilities in the United States, the new closure plan is nearly identical to every one floated by the administration over the past seven years. It has virtually no support in Congress.
The plan calls for the transfer or repatriation of detainees who no longer pose a threat to national security; periodic parole board hearings for detainees who have previously been deemed too dangerous to release to determine if they continue to be a national security threat; prosecution of a handful of detainees in federal court or before military commissions; and identifying a detention facility in the US to indefinitely hold the remaining detainees.
In other words, the administration's plan doesn't endorse a single detention facility in the US that would hold detainees even though the Pentagon surveyed potential sites last year operated by the Department of Defense and the Bureau of Prisons. Instead, "the plan identified 13 potential facilities for the purpose of building a cost estimate."
"As part of the assessment process, the Department of Defense examined ways to split the detainee population between sites, but concluded that a single detention center was the most efficient course of action," according to the administration's plan. "Additionally, the Department of Defense considered changes to achieve savings in operating (recurring) costs and facility requirements and modifications. Finally, the Department of Defense developed notional cost estimates for building a new detention center at an existing Department of Defense location."
'What we received today is a vague menu of options, not a credible plan for closing Guantanamo,' McCain said.
Pentagon press secretary Peter Cook said Tuesday, "Implementing this plan will enhance our national security by denying terrorists a powerful propaganda symbol, strengthening relationships with key allies and counterterrorism partners, and reducing costs."
According to the closure plan, if detainees were moved to the US, taxpayers would eventually see annual savings of $140 million to $180 million over the $445 million it currently costs the military to operate Guantanamo. However, executing the relocation plan would require about $290 million to $475 million in upfront costs. If the facility remains open, it would require Congress to approve at least $200 million in construction costs. The warden of the detention facility, Col. David Heath, told VICE News during a recent interview at the detention facility that he is already spending some money to upgrade the air conditioning system at camps 5 and 6, where a majority of the detainees are being held.
Currently, there are 91 detainees who remain captive in Guantanamo, 35 of whom have been cleared for transfer to other countries; senior administration officials said they expect to transfer all 35 by late summer. The administration believes it can legally hold on US soil between 30 to 60 detainees,15 of whom are high-value detainees formerly held at CIA black site prisons, "until the end of hostilities" under the 2001 Authorization to Use Military Force (AUMF), a 60-word piece of legislation that Congress passed in the aftermath of the 9/11 attacks giving the President permission to use all "necessary and appropriate force" against anyone he believed "planned, authorized, committed, or aided" the 9/11 attacks.
Raha Wala, an attorney with Human Rights First, told VICE News he agrees with the administration's legal rationale.
"Courts have said that detainees picked up in an armed conflict situation can be detained under the AUMF, and that would hold true at Guantanamo and also a detention facility within the United States," Wala said.
Wala said the administration's closure plan "presents an eminently reasonable approach to resolving an important issue of national security and American values."
But he's in the minority. The new plan has been met mostly with fierce opposition by Republican lawmakers and harsh criticism by human rights groups.
"What the president submitted today is more press release than a plan," said US Representative Mac Thornberry, the Republican chairman of the House Armed Services Committee.
The Center for Constitutional Rights (CCR), whose attorneys represent dozens of the remaining detainees, agreed.
"This is not a plan to close Guantanamo," the group said in a statement. "The centerpiece of the plan — moving those detainees who have not been and will never be charged with any crime to a prison in the US — does not 'close Guantanamo,' it merely relocates it to a new zip code. "The infamy of Guantanamo has never been just its location, but rather its immoral and illegal regime of indefinite detention. Closing Guantánamo in any meaningful sense means putting an end to that practice."
Wells Dixon, an attorney with CCR who represents some Guantanamo detainees, told VICE News that every time Obama mentions working with Congress, "I shake my head and mourn the fact that he will not close Guantanamo."
"The president's belief that Congress will work with him to close Guantanamo is naïve if not outright delusional," Dixon said.
In a news conference at the White House Tuesday morning where Obama was flanked by Vice President Joe Biden and Secretary of Defense Ash Carter, the president said he is well aware that he will be hard pressed to find support for his plan among members of Congress, particularly in an election year.
"I am clear-eyed about the hurdle of closing Guantanamo. The politics of this are tough." Obama said, adding that his plan "deserves a fair hearing."
"This is about closing a chapter in our history," he went on. "It reflects the lessons that we've learned since 9/11, lessons that need to guide our nation going forward."
He noted that his predecessor, George W. Bush, and his strongest Republican ally, Senator John McCain, the chairman of the Senate Armed Services Committee, have both supported closing Guantanamo. But over the past year, McCain has criticized the White House for failing to deliver to Congress a workable plan to close the facility. On Tuesday, he echoed that sentiment.
"What we received today is a vague menu of options, not a credible plan for closing Guantanamo, let alone a coherent policy to deal with future terrorist detainees," McCain said in a statement. "We can say now with confidence that the president has missed a major chance to convince the Congress and the American people that he has a responsible plan to close the Guantanamo Bay detention facility."
Still, McCain said the Armed Services Committee will scrutinize the plan and hold hearings about it.
Obama has not added any detainees to the Guantanamo population he inherited from Bush. Besides McCain, Senator Lindsay Graham and other Republican lawmakers have also leveled criticisms against the administration for failing to detail where detainees captured in the future will be held. The proposal submitted to Congress addresses the "disposition of future detainees" but is short on details.
"The Administration approaches new captures on a case-by-case basis with a range of options, including: prosecution in the military commission system or in Federal court; transfer to another country for an appropriate disposition there; or law of war detention, in appropriate cases. For each potential or actual capture, the appropriate Departments would review the pertinent information and make a determination on the best course of action for the individual case," according to the plan.
The only other notable part of the Guantanamo closure plan was the admission that the military commissions process, which Obama criticized as a presidential candidate and then embraced after he was sworn in, has been costly and disastrous and needs to be changed.
"Both prosecutors and defense counsel have explained to the presiding military judges that it will take significant additional time to properly identify, produce, and examine the substantial volume of classified material involved in these cases. These complex issues and the volume of classified discovery have resulted in the filing of hundreds of motions – many of which raise matters of first impression in the commissions system," according to the administration's closure plan. "Resolution of these motions and completion of discovery are necessary steps in order to effectuate a full and fair trial, and to seek justice for both the victims and the accused. We can expect lengthy appeals once the active cases go to trial and reach verdicts. All of this currently costs $91 million per year and is expected to continue for several years."
Three active cases involving seven detainees, including alleged 9/11 mastermind Khalid Sheikh Mohammed, are being prosecuted before military commissions, which are still in the pretrial phase, and the administration believes it can eventually prosecute 22 other detainees. But not necessarily under the current military commissions framework.
"The Administration is considering requesting changes to the Military Commissions Act of 2009 that would facilitate the efficacy and fiscal accountability of military commission proceedings while ensuring that they continue to operate in a fair and impartial manner," the closure plan said.
Additionally, the plan floats the possibility that, through "legislative changes," some detainees may want to avoid a lengthy criminal trial and plead guilty to terrorism charges in federal courts and serve prison time.
Senator Dianne Feinstein, the only Democratic lawmaker who has been vocal about backing the administration's efforts to close Guantanamo, said Congress "should take action to support this effort" and lift "the ban on transferring detainees to the United States."
"By upholding this ban, Congress tacitly approves keeping Guantanamo open forever," she said in a statement. "This prison is a waste of taxpayer dollars — more than $5 billion to date — and stands in contrast to our values as a nation."
Yet, as Obama noted during his news conference, those "universal values, including rule of law and human rights," the reasons why he said Guantanamo should be closed, are contradicted by an executive order issued by Obama several years ago in which he made indefinite detention without charge or trial the law of the land. The Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and the United Nations Rapporteurs on Torture, Human Rights and Counterterrorism, and Health have all said that "the continuing and indefinite detention of individuals without the right to due process is arbitrary and constitutes a clear violation of international law."
In a background briefing call to preview the plan Tuesday morning, senior administration officials would not say whether Obama would use his executive authority as commander-in-chief to close Guantanamo if Congress stood firm and refused to take up the closure plan.
The closure plan was unveiled just a few weeks before the Office of the Director of National Intelligence is expected to release its biannual recidivism report to Congress on the number of detainees released who have "returned to the fight," statistics which Republican lawmakers have seized upon as reasons why they believe the facility should remain open.
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