Five Reasons Guantanamo Won't Close This Year

President Obama's plan to close the military detention center is stalled.

May 26, 2010, 5:12 PM

WASHINGTON, June 2, 2010— -- Sixteen months after the Obama administration ordered the closure of the U.S. military detention camp at Guantanamo Bay, Cuba, more than 180 detainees remain at the base, stuck in political and legal limbo that appears likely to persist at least through the end of the year.

Congress and the administration, facing the realities of election-year politics and a litany of legal and security concerns, remain at an impasse about what do to with the dozens of detainees cleared for release abroad, those slated for prosecution in military or civilian courts and others to be held indefinitely without charge.

"Numerically speaking, the Obama administration has made some progress toward closing Guantanamo by transferring and releasing detainees abroad," said Matthew Waxman, who served as deputy assistant secretary of defense for detainee affairs in the George W. Bush administration. "But, legislatively, they've been losing ground and are now worse off than when they started because of congressional restrictions."

The pending 2011 Defense Authorization Bill, which is the latest flash point in the Guantanamo debate, would slow the transfer of detainees to their home or third-party countries, hinder a future transfer of detainees to U.S. soil and block funds to buy or build a replacement for Guantanamo in the United States.

But Congress' tight hold on the purse strings isn't the only roadblock to closing Guantanamo. Here are five more:

One of the key unresolved questions is where to try and hold the 36 detainees the administration plans to prosecute in military and civilian courts.

Attorney General Eric Holder said late last year that the trial of 9/11 mastermind Khalid Sheikh Mohammed and four other alleged terrorists held at Guantanamo would take place in U.S. federal court in New York City. But the decision came under immediate fire -- even from friends of the administration -- by critics who believed that sending the men to the scene of the crime for trial raised too many financial and security concerns. The administration has now taken the issue back under consideration.

Meanwhile, the administration's plans to acquire the Thomson Correctional Center in Illinois to house some of the detainees from Guantanamo Bay, which critics have assailed as "Gitmo North," remain stalled in Congress, which has rejected funding for the prison and remains reluctant to change a law that prohibits uncharged detainees from being brought to U.S. soil.

While Illinois Gov. Pat Quinn was pleased with the decision and the economic opportunity it could provide for a depressed area of Illinois, others have worried that bringing the accused terrorists to America's heartland would effectively put a bull's-eye there for terrorists.

Still, the White House says it intends to eventually utilize the facility, citing the precedent of more than 350 convicted terrorists already serving time in U.S. prisons and the economic advantage such a facility would provide.

"The Department of Defense currently spends approximately $150 million per year for detention operations at Guantanamo ... operating costs will be cut in half at Thomson," national security adviser Gen. James Jones wrote in a letter to Congress last week.

Cleared for Release but Nowhere to Go

The Obama administration has managed to resettle 33 detainees in 13 different countries since taking over management of Guantanamo in 2009. A panel of intelligence officials approved the detainees' release either because there was scant evidence of their involvement with terrorist groups or they were deemed low-level foreign fighters.

Dozens more are expected to follow when officials can find them homes.

But a looming dilemma is what to do with the 30 Yemenis whose release had been cleared but later put on hold in the wake of the attempted Christmas Day bombing of Northwest Flight 253 by Nigerian Umar Abdulmutallab, who is believed to have received al-Qaeda training in Yemen.

The administration halted the repatriation of all Yemenis from Guantanamo amid concerns about the country's security and record of breeding terrorism. Tom Malinowski of Human Rights Watch says this is a potential problem.

"If Gitmo stays open as a camp that is mostly for Yemenis, I can't imagine a better gift to al-Qaeda in the Arabian Peninsula," he said.

Lawmakers have also expressed concern with the number of former Guantanamo detainees returning to the battlefield. While the exact number is unclear, the Pentagon estimated in January a 20 percent recidivism rate, up from 14 percent six months before.

Republicans alarmed by the rising number say it's one reason Guantanamo should be left open. But the Obama administration has countered that all of the former detainees who have returned to terrorist activities were released or transferred under the Bush administration.

Furthermore, the administration says it has instituted a comprehensive review process involving multiple agencies to monitor detainees. Still, the prospect of released detainees returning to the battlefield at all instills more than a little uneasiness among policymakers who are weighing just that.

Indefinite Hold: Objections to Imprisoning 48 Without Charge

Another sticking point revolves around 48 prisoners the administration says it will hold indefinitely under the laws of war. U.S. law forbids the transfer of such uncharged individuals to U.S. soil but the administration wants Congress to change the law.

Human rights groups are opposed to the idea of bringing the uncharged detainees to Thomson Prison or any other facility inside the United States for fear that it will start a new legal precedent.

"It's bad enough that indefinite detention without charge is going on in places like Guantanamo and Afghanistan, but to bring it to U.S. shores creates a whole other level of problems," Chris Anders of the American Civil Liberties Union said. "Right now in the United States, there are zero people being held indefinitely without charge. If the 48 are brought to Thomson it will make it easier for the U.S. to add to that number."

Malinowski of Human Rights Watch agreed, saying he's concerned the administration might "institutionalize the problem" of the uncharged 48 by "making detention without charge a permanent feature of the fight against terrorism."

Furthermore, these groups say, under the Geneva Convention rules for treatment of prisoners during war, the detainees who remained uncharged are supposed to be free from detention in an environment consistent with a near lockdown of a supermax penitentiary.

"The detaining power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners, and shall take the measures necessary to ensure the exercise thereof by providing them with adequate premises and necessary equipment," Article 38 of the Conventions reads.

Crowded Election-Year Agenda

Finally, as the administration struggles with the devastating oil leak off the Gulf Coast, the fluctuating economy and a full congressional agenda, including the upcoming Supreme Court confirmation hearing for Elena Kagan, many believe President Obama's initial goal of prioritizing the closure of Guantanamo is wavering.

"The administration has had other priorities and has let the republicans control the air waves," the ACLU's Anders said. "The politics in Congress are complicated by the administration's hesitancy to publicly push back on the issue."

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