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Fight Over the Fate of Gitmo Rages On in Congress

Within hours of last week’s mass killing at a satirical magazine in Paris, Sen. Kelly Ayotte was on the Fox News airwaves arguing that the terrorist attack illustrated the folly of the Obama administration’s efforts to close the U.S. military-run prison at Guantánamo Bay, Cuba.

“They’ve been seeking to release those that are in Gitmo right now,” Ayotte said. “And if you look at the group that is in Gitmo and has been released from Gitmo, 30 percent of those are suspected or have re-engaged in terrorism. And so the issue is why do we need Gitmo? One reason is we should have a place that’s secure to interrogate terrorists that we capture.”

Senate Armed Services Chairman John McCain, R-Ariz., said Tuesday the committee will take up legislation that would suspend transfers of medium- and high-risk detainees from Guantánamo and prohibit for two years any transfers to Yemen.

While the suspected French assailants appear to have been homegrown terrorists with no connection to Guantánamo, Ayotte and other GOP critics of the administration’s policies said the attack is a reminder of the need for better intelligence, which they contend President Barack Obama is endangering by moving to close the detention facility. For his part, Obama has argued that Guantánamo has given America a black eye around the world.

“It is something that continues to inspire jihadists and extremists around the world, the fact that these folks are being held,” the president said in an interview last month with CNN. “It is contrary to our values, and it is wildly expensive. We’re spending millions for each individual there.”

Promises to Keep

The dispute is already shaping up as one of the most spirited of 2015, as Obama accelerates efforts to keep a campaign promise as his presidency enters its home stretch. He has already signaled plans to move ahead, despite restrictions on prison releases or building a stateside facility to house detainees that Congress has written into military authorization and spending bills. In signing the fiscal 2015 defense authorization bill (PL 113-291) into law last month, Obama said in a statement that he, in effect, reserves the right to ignore statutory provisions that infringe on his constitutional authorities.

“The executive branch,” he wrote, “must have the flexibility with regard to those detainees who remain, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy.”

“Under certain circumstances,” Obama wrote, “the provisions concerning detainee transfers in both bills would violate constitutional separation of powers principles.”

Over the past couple of months, Obama has stepped up the pace of transfers from Guantánamo, releasing 28 people during 2014 to cut the number in custody to fewer than 130. The goal, according to published reports, is to reduce the total of Guantánamo detainees to about 60 — a point at which it would be hard to argue that it makes financial sense to keep the facility open.

“I don’t think it will be successful in this Congress,” Ayotte told Fox News last week, “and I will tell you that it’s pretty obvious what they’re trying to do. The president’s trying to fulfill a campaign promise.”

Ayotte said the administration has released 27 detainees since May, including 15 in December. Four released to Afghanistan, she said, “were previously reported to be high risk, which means high risk of re-engagement for terrorism. And what we’ve heard is that they’ve gone back to their homes. So this is a real risk of people who we had captured getting back in the fight against not only our troops, our allies, and that’s real American lives at risk.”

Ayotte and other GOP critics don’t mention that President George W. Bush released or transferred an average of 67 prisoners a year from Guantánamo. That’s a total of 532, with a 19 percent recidivism rate, or 101 detainees returning to the fight, according to the Office of the Director of National Intelligence. Obama, by contrast, has released far fewer Guantánamo detainees and has seen a much lower recidivism rate: an average of 15 a year through September, or 88 total, with a 7 percent rate of returning to the battlefield. That’s six fighters.

Continuing Opposition

Obama signed an order on the first day of his presidency pledging to close Guantánamo within a year, but had to back down in the face of congressional opposition to moving some detainees to prison facilities in the United States. Both sides in the Guantánamo dispute are likely to double down this year, with congressional Republicans using their strengthened hand to pass legislation that would keep the prison facility open and Obama responding with his veto pen.

One wild card may be McCain, the new Senate Armed Services chairman. Although the Arizona Republican is one of the administration’s strongest critics and a close ally of Ayotte on most issues, the former prisoner of war has also supported closing the Guantánamo prison.

McCain — who advocated moving Guantánamo detainees to the federal penitentiary in Leavenworth, Kan., during his 2008 presidential campaign — told CNN last month he is prepared to help the administration shut the facility and thinks he can sell it to fellow Republicans if Obama presents a credible plan for dealing with the handful of prisoners too dangerous to ever release.

McCain’s concern, and that of allies such as Republican Lindsey Graham of South Carolina, has been what they consider to be the administration’s lack of leadership on the issue and its inability to devise a feasible alternative.

“In over six years, this administration has never presented to the Congress of the United States any concrete or coherent plan as to how to handle the detainee issue,” McCain said Tuesday.

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