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While the public eye was focused on the signing of the “don’t ask, don’t tell” repeal bill, and while the media was regaled at the White House by a special presidential briefing, the Senate passed the National Defense Authorization Act, which included a ban on the transfer of Guantanamo Bay detainees to the U.S. The ban may be a death knell for the administration’s goal to shutter the Guantanamo Bay detention facility, as well as its push for detainee civilian trials. In effect, the Obama administration will be forced into handling captured terrorists in a way that is not appreciably different from the Bush administration. Military commissions will reign, and Guantanamo Bay will be their venue.
Prior to the 2008 presidential election, President Obama had been univocally opposed to the continuing existence of the Guantanamo Bay detention facility, as well as the indefinite detention of terrorists. Although committed to seeing Guantanamo closed, the practicalities of doing so have proven relatively intractable for the president. The closure of the facility is now overdue by almost a full year, despite febrile attempts by the administration to ship detainees to receptive (and bribed) foreign countries, and a renewed emphasis on using the civilian court system. As early as the spring of 2009, the president signaled that indefinite detainment would not be discontinued anytime soon, although he was reportedly “grappling” with the idea at the time. The problem has always been that there are a number of detainees who are too dangerous to release and yet, cannot be tried in the civilian court system with sufficient guarantee of prosecution. In these cases, the administration fears (inter alia) evidentiary taint from “torture” or the inadmissibility of information because it is too sensitive to use in court.
There are approximately 48 Guantanamo prisoners, out of 174 remaining, who fall into this category. The Obama administration has been forced to continue the practice of indefinite detention with these individuals, but the ideal place for detention, as far as the administration is concerned, is in the U.S. In 2009, the administration proposed opening a prison in the president’s home state of Illinois to hold these terrorists (and others awaiting trial). This suggestion received fierce bipartisan condemnation. Another deeply contentious issue has been the unremitting insistence that detainees — most famously Khalid Sheikh Mohammed, the confessed mastermind of the 9/11 attacks — be tried in the civilian court system. These and other issues proved enormous obstacles to the closure of Guantanamo, as legal processing has been less than expeditious, while a viable alternative location has not been forthcoming.
The transfer ban in the defense authorization bill is the proverbial nail in the coffin for civilian trials, the prospect of a domestic prison, and more than likely, for the push to close the detention facility itself. The ban forbids transfer of detainees to the U.S. for any reason, including prosecution. It also expressly prohibits the construction or purchase of a surrogate facility in the U.S. Furthermore, there is virtually no chance that President Obama will exercise his executive authority to veto the bill, as it is one aspect of a general spending bill necessary to fund the Afghanistan War. Thus, the Obama administration is effectively forced to continue military commissions at Guantanamo Bay, continuing operations virtually identically to the Bush administration, with perhaps one small change.
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