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Finally, even if the Administration should prove successful in moving detainees to the United States, America’s enemies and those who oppose the law of war detention would likely shift their criticism from Guantanamo to the new locus of detention, undercutting one of the main arguments made in favor of closing the facility in the first place.Before analyzing Section 1032, it is important to provide some context for the Senate amendment and the Obama Administration’s Guantanamo Bay detention policy.
It also would limit judicial review of detainee cases and require the Administration to produce a comprehensive plan on the disposition of each detainee, including costs, legal implications, threat assessment, and a plan for what to do with them if or (more likely) when the armed conflict ends.
Once the comprehensive plan is submitted to Congress, under the amendment as written, Congress must approve it, or the plan is rejected.
The Democrats held a 59–41 majority in the United States Senate when counting Independents who caucused with them. Similarly, in the House of Representatives, the Democrats enjoyed a 257–178 advantage. If the President needed any legislation to close Guantanamo—a debatable point—or simply the political backing of the majorities in both houses of Congress, the stars were aligned for him to do so.
In his first week in office, on January 22, 2009, President Obama signed Executive Order 13492 requiring that the joint detention facility at Guantanamo be closed within a year. The order stated that any individuals still in detention after the one-year mark “shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.” Yet 2009 ultimately proved to be a pivotal year in the detainee saga not because of any substantial steps toward shuttering Guantanamo, but because, with regard to the question of closure, a series of missteps turned Congress against the Administration.
Throughout the summer of 2009, Congress held hearings on reforms needed to improve the Military Commissions Act of 2006.
On October 28, 2009, Congress passed the NDAA for Fiscal Year 2010.Conservatives opposed to its closure point out that Guantanamo Bay is a well-run, safe, and humane facility that should remain open during the ongoing armed conflict.The facility has been found to be in compliance with Common Article 3 of the Geneva Conventions by both the Bush and Obama Administrations. Supporters argue that al-Qaeda waged war against the United States well before Guantanamo Bay became a terrorist detention facility.Those meaningful reforms of military commissions became the Military Commissions Act of 2009. Sixteen days later, on November 13, 2009, then-Attorney General Eric Holder announced that the five Guantanamo terrorists responsible for the 9/11 attacks would be brought to New York to face a criminal trial in federal district court. Politicians from both parties objected vigorously, including Democratic Senator Chuck Schumer and Republican Representative Peter King, both from New York. As if those moves did not poison the relationship between the Obama Administration and Congress enough with respect to Guantanamo, on December 15, 2009, President Obama issued a Presidential Memorandum to the Attorney General and Secretary of Defense to purchase the state-run Thomson Correctional Facility in Thomson, Illinois, for the express purpose of housing Guantanamo detainees. The controversial move produced another political backlash against the Administration.Even Obama’s diehard supporter from Illinois, Democratic Senator Dick Durbin, who at first supported the move, withdrew his support when it became “politically impossible.” As a result of these moves, Congress began to include a provision in annual appropriations or defense authorization enactments that barred the use of funds to construct or modify a facility in the United States to house detainees who remain under the custody or control of the Department of Defense. The closure of the Guantanamo Bay detention center did not have to unfold in such a contentious fashion.The President argues that it is imperative to close Guantanamo Bay because it has weakened national security and set back the moral authority of the United States. Human rights organizations claim similarly that Guantanamo Bay “is a grave threat to both human rights and U. national security” and is “emblematic of the gross human rights abuses perpetrated by the U. government.” And Matthew Waxman, the first Deputy Assistant Secretary of Defense for Detainee Affairs during the Bush Administration, has opined in that Guantanamo Bay has “hampered cooperation with our friends on such critical counterterrorism tasks as information sharing, joint military operations and law enforcement.” Some, including President Obama, have claimed that the existence of Guantanamo Bay has acted as a recruiting tool for more terrorists. However, a recent study of jihadist propaganda concluded that Guantanamo Bay has “grown far less salient over the last few years…and has never played a big role in any terrorist groups’ propaganda compared to issues that really animate those groups.” The study concluded that “it is hardly clear that Guantanamo’s would matter much, so far as concerns the contents of jihadist propaganda.” That said, it is no coincidence that ISIS henchmen have exploited the image of orange jumpsuits—worn by the first Guantanamo Bay arrivals—by dressing their victims in the same orange garb and brutally executing them.The year 2009 was arguably the most opportune time for the Administration to close Guantanamo.These mistakes soured the mood in Congress regarding the Administration’s judgment with respect to how to deal with some detainees and resulted in the Democrat-controlled House and Senate passing legislation to prevent the Administration from importing detainees into the United States—a key part of the original executive order and all closure plans.In May 2009, President Obama gave an in-depth speech on national security and Guantanamo detainee policy at the National Archives. He acknowledged that “there are no neat or easy answers” with respect to Guantanamo but said that he refused “to allow this problem to fester.” In fact, he admitted that “it is my responsibility to solve the problem.” To this end, Obama proposed five distinct categories through which detainees would be disposed: President Obama acknowledged that the last category is “the toughest single issue we will face” and further promised that he was not going to “release individuals who endanger the American people.” He also promised to “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” The President, however, failed to deliver on these promises, and a month later, on June 9, 2009, the Administration transferred Ahmed Ghailani from Guantanamo to the United States for trial in a federal district court in New York. The move was controversial not only because Congress was not given prior notice of the transfer, but also because it was thought that Ghailani was a prime candidate for a reformed military commission trial. Officials in New York were upset because they believed his trial would inspire new terrorist attacks against the city and impose additional security costs for law enforcement.Section 1032 passed the Senate on June 18, 2015—before the Senate received the Administration’s promised Guantanamo Bay “closure” plan.Whether the Senate-passed amendment will become law is anyone’s guess, as it must survive the House/Senate conference committee meeting on the House and Senate versions of the NDAA. There was no similar provision in the House-passed NDAA.