Playing Defense on Guantánamo

Posted November 8, 2011 at 6:10pm

Three years after his election, President Barack Obama still doesn’t have a plan to close the Guantánamo Bay, Cuba, military prison and he may lack the votes in Congress to do it even if he comes up with one.

The question of what to do with terrorism detainees and Guantánamo has become a perennial loser for the White House — one where moderate Democrats sometimes abandon the administration when it comes time to vote and Republicans sense weakness and political opportunity.

But the issue is coming to a head with the Defense Department authorization bill heading to the Senate floor with a detainee provision the White House opposes, renewed pressure from Republicans to resolve the issue before the United States pulls out of Iraq, and military tribunals resuming at Guantánamo itself.

“I’m not the best vote-counter in the world, but we’re not going to close Gitmo anytime soon,” Sen. Lindsey Graham (R-S.C.) told Attorney General Eric Holder at a hearing Tuesday.

Graham, who said he supports closing the prison if a viable alternative can be found, pressed Holder to provide a plan to Congress within 30 days on alternatives to Guantánamo for detainees from Iraq and Afghanistan.

“Where would we put someone if we captured them tomorrow?” he asked.

Graham said options that have been considered, including putting detainees on ships or in Afghanistan, aren’t viable for the long term. He noted that the United States will soon withdraw from Iraq and said if the administration tries to bring detainees from Iraq to the United States, “Holy hell is going to break out.” The Obama administration had explored housing detainees from Iraq and the war on terror at a facility in suburban Illinois.

“If we don’t use Gitmo, what are we going to do?” he asked.

Graham cited one detainee in Iraq who is tied to Hezbollah and is suspected of killing Americans. He said handing that detainee to the Iraqis would be “just like letting him go.”

Holder said that he could not guarantee a timeline for coming up with a plan to close Guantánamo. “There are a number of options we are discussing,” Holder said, adding that a final decision would be made “by people higher up the ladder.”

But Holder said the administration’s goal remains the same. “The president has made clear, the administration has made clear, that we are not going to be using the Guantánamo facility, so we have to come up with options,” he said.

But Graham wasn’t satisfied: “Could you tell those people higher up that we are about to withdraw from Iraq and these people in Iraq are going to be let go? And we are running out of the ability to hold people in Afghanistan. That time is not on our side.”

Senate Minority Leader Mitch McConnell (R-Ky.) also confronted the White House on Tuesday, saying on the Senate floor that Obama should insist in December talks with Iraqi Prime Minister Nouri al-Maliki that detainees in Iraq suspected of killing Americans be transferred to Guantánamo. And he again called on the White House to give up its goal of closing the facility. “The logical place to put long-term or indefinite detention of foreign fighters … is not on a ship at sea or in our private prison system but, rather, as I’ve said many times before, at the secure detention facility at Guantánamo.”

McConnell said Obama tied his own hands by signing an executive order in his first days in office to close the prison without a plan for how to carry that out.

Senate Majority Whip Dick Durbin (D-Ill.) argued on the floor that terrorists have been successfully tried in U.S. courts before.

“More than 300 terrorists have been successfully prosecuted in our courts,” Durbin said. “The same courts that Sen. McConnell questions whether they could adequately protect America. … How many have been prosecuted in military tribunals in that same period of time? Three.”

But a senior Senate Democratic aide Tuesday conceded Graham’s point.

“They’re not going to be able to close Guantánamo before the election,” the aide said, noting the problematic politics of transferring detainees to the United States. “They’re trying to thread a needle that’s very difficult to do given this political environment.”

The detainee issue could soon be the subject of votes on the Senate floor, with the outcome far from certain. Democrats defeated a provision last month that would have made military commissions the default for al-Qaida suspects, but a similar proposal approved by the Armed Services Committee as part of the defense authorization bill will be harder to defeat. 

Sen. John McCain (R-Ariz.), the panel’s ranking member, said Tuesday he is still negotiating with Democrats on the issue.

The White House and Senate Majority Leader Harry Reid (D-Nev.) object to the detainee provision, although it includes a waiver allowing civilian court prosecutions. But given that only one Democrat — Sen. Mark Udall (Colo.) — opposed the provision in committee, the GOP may hold the upper hand.

Still, 13 Senate Democrats sent a letter to Reid on Oct. 21 expressing “grave concerns” about the provision, arguing that mandating military detention unless a waiver is granted could harm intelligence gathering by cutting off civilian interrogations in midstream and potentially making it harder to prosecute some terrorists.