Dec. 10, 2010 -- As extension of tax cuts pits Democrats against the White House, President Obama is facing another rebellion from House Democrats -- who slipped a provision into the federal funding bill this week barring alleged terror suspects at Guantanamo Bay from being moved to U.S. prisons.
Guantanamo has been a sore point for Democrats and Republicans; Obama signed an executive order 21 months ago -- one of his first as commander-in-chief -- to shut it down. His plan to have detainees move to federal prisons has taken much heat from both sides of the political aisle.
The president's plan this week also received another blow in the form of a report by Director of National Intelligence James Clapper, which said "the number of former detainees identified as reengaged in terrorist or insurgent activity will increase."
Of the 598 detainees who have been released, the DNI report found that 81 of them, or 13.5 percent, are confirmed and 69, or 11.5 percent, are suspected of reengaging in terrorist or insurgent activities. Of the 66 former Guantanamo detainees transferred since Obama took office, "2 are confirmed and 3 are suspected of reengaging in terrorist or insurgent activities."
The White House insists that closing the Guantanamo Bay detainee center is a "national security imperative," but the latest move by the House, amid the background of Clapper's report, does not bode well for the president's agenda.
"It could have quite a significant impact on his ability to close Guantanamo," said Matthew Waxman, an associate professor of law at Columbia University and an expert in national security law. "Since the beginning of this administration, there's been some progress in reducing the number of detainees at Guantanamo, but at the same time, the president has been losing ground legislatively on the issue in that Congress has been imposing greater and greater restriction on the ... type of flexibility which is needed to deal with this problem."
The House language specifically bars any federal funding from being used to transfer or release to the United States Khalid Sheikh Mohammed or any other Guantanamo Bay detainee who is not a U.S. citizen or member of the U.S. armed forces. It also prevents the Department of Justice from acquiring a facility to be used for holding a detainee.
The ban on detainee transfer would apply until Sept. 30.
Guantanamo Another Thorny Issue Diving Democrats and Obama
Earlier this year, Attorney General Eric Holder's efforts to move alleged 9/11 mastermind Khalid Sheikh Mohammed and four other alleged terrorists held at Guantanamo to a federal court in New York City came under fire from both Democrats and Republicans.
With the exception of Illinois Gov. Pat Quinn, most lawmakers from around the country have been resistance to house detainees in their backyards for fear that it would increase terrorist activities.
Holder on Thursday urged Senate leaders Harry Reid, D-Nev., and Mitch McConnell, R-Ky., to remove the language from the bill when it's taken up by the Senate, calling it an "extreme and risky encroachment" on the executive branch's authority that would set a "dangerous precedent" and tie the president's hands.
"This provision goes well beyond existing law and would unwisely restrict the ability of the executive branch to prosecute alleged terrorists in federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in such tribunals," Holder wrote in a letter to Reid and McConnell. It "would undermine my ability as attorney general to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism."
It's not unusual for lawmakers to assert their power over the executive branch in these kinds of bills. But the battle over Guantanamo Bay is another example of the fight Obama is getting from his own party.
"The current legislative climate makes it very very difficult for the president to bring detainees into the United States, whether for detention or criminal prosecution, and almost impossible to close Guantanamo altogether," Columbia's Waxman said. "Right now, the Congressional climate is very unfriendly towards that notion."
The detainee center at Guantanamo Bay currently houses 170 prisoners, of which 30 were due to face trial in criminal courts or before military commissions. Since 2002, about 600 have been transferred to other countries.
Ahmed Ghailani, the first Guantanamo detainee to be tried on U.S. soil in a civilian court, was acquitted in New York last month on all 285 charges except one. Ghailani was accused of conspiring in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.