Source: Huffington Post

By Jessica Schulberg; Foreign Affairs Reporter, The Huffington Post

WASHINGTON — The Pentagon released a long-anticipated plan outlining the steps the Obama administration will take to close the notorious Guantanamo Bay detention facility.

The document released Tuesday morning contained few surprises and failed to remedy conflicts between President Barack Obama’s aspirations to shut down Guantanamo during his final year in office and legal restrictions imposed by Republicans in Congress that prevent the president from sending any of the remaining detainees to the U.S. It was released by the Pentagon not because of a breakthrough agreement between the White House and Congress but because of a deadline set by lawmakers for “the details of a comprehensive strategy” on how to detain current and future people captured as part of the broad-reaching war on terror.

The plan closely resembles what Obama has long called for: transferring those who have been cleared for release to third-party countries, bringing those who can be charged with a crime to trial in the military justice system or in a foreign court, and working with Congress to move the remaining prisoners to a U.S. prison — an effort lawmakers outlawed in the annual defense spending bill.

The White House refers to the population of prisoners that can’t be charged with a crime — either because of lack of evidence or because the evidence available is tainted by torture — but are deemed too dangerous to release as the “irreducible minimum.” There are currently 91 prisoners at Guantanamo Bay, including 35 who have been approved for transfer and seven who are facing charges in the military commissions system.

A senior administration official said Tuesday that the prisoners who cannot be released abroad could be transferred to a modified existing military facility on U.S. soil or to a new site built specifically for the Guantanamo prisoners. The Pentagon plan does not recommend a specific site, but Fort Leavenworth in Kansas and the U.S. Naval Consolidated Brig in South Carolina have been floated as possible facilities.

Republicans reject any proposal that involves moving Guantanamo detainees stateside, making it unclear how Obama will implement the Pentagon’s plan without completely bypassing lawmakers. Sen. Pat Roberts (R-Kan.) has placed a hold on the president’s nominee for the secretary of the Army, Eric Fanning, the first openly gay individual to be nominated to head one of the military branches. Katherine Knight, a spokesman for Roberts, said he is willing to use “any legislative tools at his disposal to prevent this transfer.”

The senior administration official described the Republican opposition as nonsensical.

“To think that we can’t hold 30 to 60 people in a DOD facility securely, we don’t accept that premise,” he said.

He acknowledged the uphill battle the White House faces in getting congressional Republicans to accept the proposed plan to close Guantanamo, but said Obama is committed to taking Guantanamo “off the plate of the next president.” As for how to do that given the current legal restrictions, the official simply told reporters, “It’s an occupational requirement to be optimistic in this business.”

While the Pentagon’s plan explicitly referred to working with Congress to find a way to transfer the remaining Guantanamo prisoners to a U.S. facility, Obama has not ruled out bypassing Congress and using his executive authority to close the prison facility, which numerous Defense Department officials say serves as a terrorist recruitment tool. Former White House legal experts have argued that the ban on transferring detainees to the U.S. infringes on the president’s constitutional right to make “tactical military decisions.”

Sidelining Congress would guarantee a dramatic showdown between the president and congressional Republicans, who have threatened to sue Obama if he were to do so. Congressional Democrats may try to introduce legislation allowing the transfer of detainees to the U.S. and attach it to must-pass legislation — the same way Republicans pushed through the initial transfer ban — but it is unlikely Republicans would cave, especially during an election year.

In addition to enraging opponents of closing Guantanamo Bay, the Pentagon’s plan falls short of the demands of some human rights advocates who have lobbied for years to shut down the prison. Amnesty International Executive Director Steven W. Hawkins wrote Obama last October warning that simply moving the practice of indefinite detention to the U.S. would “perpetuate, not fix, the problem.” The Pentagon’s plan continues to rely on the legal justification that prisoners captured during the ongoing “war on terror” can be held indefinitely without charge. “There is a risk that the United States would be further mainstreaming into its legal landscape a detention regime that has undermined principles of ordinary criminal justice,” Hawkins wrote.

The Center for Constitutional Rights, an organization whose lawyers have represented multiple Guantanamo detainees, charged that the plan “does not ‘close Guantanamo,’ it merely relocates it to a new ZIP code.”

“The infamy of Guantanamo has never been in just its location, but rather its immoral and illegal regime of indefinite detention,” the group said in a statement.

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