Obama readies for showdown on Guantanamo closure

New York, United States – A trickle of detainees has been leaving Guantanamo Bay detention centre in recent weeks. Its razor-wire fences encircle only 91 men at present – a third of whom are expected to be sent overseas by summertime.

On Tuesday, February 23, the Pentagon is expected to submit a plan to Congress to close the US military prison at Guantanamo Bay.

President Barack Obama has long promised to close down the prison located on a US naval base in southeast Cuba, despite opposition in Congress. The commander-in-chief is making a last-ditch attempt to fulfil that pledge before leaving the White House in January 2017.

During his State of the Union address last month, Obama decried a costly “recruitment brochure for our enemies”. But, he also used non-committal language about his plans, saying only that he will “keep working to shut down the prison”.

Analysts have scrutinised those brief comments. Some say he will fulfil his early promise as a legacy project, others suggest he is loath to bypass lawmakers and provoke a constitutional row that will drag on long after he has vacated the White House.

Detainees hope again

This debate has reached the detainees, who range from those who pose little danger up to Khalid Sheikh Mohammed, the alleged architect of the attacks on New York and Washington in 2001 and four other 9/11 plotters.

“Guys in detention anywhere develop coping mechanisms, to let go of hope. These recent transfers have opened up hope for people who had tried their hardest to put it in their back pockets and never think about it,” Shayana D Kadidal, a lawyer for some inmates, told Al Jazeera.

“It’s a combination of happiness for the people who have been transferred and that particular species of sadness that comes when one’s hopes, which have been long crushed, are suddenly awakened again,” Kadidal said.

The detainees include 35 men who are being approved for transfer overseas via deals between the US and foreign governments.

Since 2009, 26 countries have accepted 94 inmates for resettlement, mostly in Europe and the Middle East.

Ian Moss, from the US State Department’s Office of the Special Envoy for Guantanamo Closure, said diplomats are working hard to “identify responsible opportunities” for transferring those who have been approved for relocation.

“We are in the final stages of negotiations with a range of governments and anticipate significant progress in reducing the detainee population by this summer,” Moss, the unit’s chief of staff, told Al Jazeera.

Relocation

The rest are trickier to resolve. They include 46 men whose cases can be reviewed periodically, including 22 who have been referred for prosecution and 25 who face continued detention.

Another 10, including Khalid Sheikh Mohammed, face active criminal charges.

Officials are considering what to do with these 57 inmates. Options include more case reviews and foreign transfers, painstakingly slow military commissions, trials in US civilian courts, plea deals, and transferring convicts and suspects to prisons on US soil.

A plan is expected before Congress within weeks. Pentagon officials have evaluated Fort Leavenworth, a sprawling military complex in Kansas, as well as sites in South Carolina and Colorado, for holding detainees.

“The administration continues to work diligently on completing the plan to safely and responsibly close the detention facility,” Gary Ross, a US Navy commander and Pentagon spokesman, told Al Jazeera. “While we don’t have a specific timeline, the plan will be delivered to Congress as soon as it is complete.”

Obama inherited Guantanamo Bay from his predecessor, George W Bush, who opened it in 2002 to hold alleged militants rounded up in Afghanistan and, later, Iraq. According to Bush, their “enemy combatant” status meant they could be denied some legal rights.

Lack of support  

Shortly after his inauguration in 2009, Obama signed an executive order to close the facilities within one year. The number of detainees is lower now than at its peak of 684 in 2003, but it still costs as much as $400m to run each year.

His closure plan lacks support among the public, politicians and the military.

Last month, Pew Research Center pollsters found that 49 percent of Americans said closing the prison was a bad idea, against 42 percent who approved of a plan.

According to Reuters, a news agency, military chiefs have worked against their commander-in-chief, deliberately dragging their feet on detainee transfers and running out the clock until the Oval Office has a new occupant.  

Vanda Felbab-Brown, an analyst at the Brookings Institution think-tank, highlighted other problems. Congress has banned prisoner transfers from Guantanamo to the US; and there is flimsy evidence against some detainees who are believed to pose a threat.

“Some are presumably so dangerous that they cannot just be transferred to another country. Because of major violations of procedures, others cannot go to US trial because they would be acquitted on the basis of torture or mishandling of evidence,” Felbab-Brown told Al Jazeera.

“Obama wants to make it happen, he committed to it from the beginning, he wants it in his legacy, but the obstacles are major.”

Congressmen warn of caged terrorists busting out of prisons on the US mainland. Obama is expected to make his case to a Republican-controlled Congress, while reserving his ability to use executive powers to bypass politicians.

READ MORE: Obama’s plan to shut Guantanamo set for Congress

The endgame

Analysts are divided on how Guantanamo’s endgame will play out.

Karen Greenberg, a security expert at Fordham University School of Law, said she expected it to be closed when Obama hands his White House keys to the winner of the US presidential election in November.

“If they increase the frequency of the periodic review boards and speed up transfers, they could whittle this population down to almost nothing. Then, they could cut some plea deals, leaving only a few people in indefinite detention in the US,” Greenberg told Al Jazeera.

“It’s very different when you are talking to Congress about more than 90 people, to talking about fewer than two dozen.”

Kadidal, from the Centre for Constitutional Rights, a legal advocacy group, warned against Obama striking a compromise by transferring suspects to US prisons but still denying them their day in court.

“It’s not closure of Guantanamo in any meaningful sense to close the prison in Cuba while allowing the system of detention without charge to go on indefinitely,” Kadidal told Al Jazeera.

“As long as that remains the president’s plan, no amount of frantic manoeuvring this year will allow him to truly accomplish what he promised when he first ran for president.”

Harvard Law School professor Jack Goldsmith said Obama’s current efforts to shutter the facility are merely political theatre, in which he is ready to “capitulate” to Congress rather than prompt a constitutional clash.

“Expect Congress to reject his plans; expect the president to publicly anguish over closing Guantanamo unilaterally, but ultimately decide that the rule of law forbids it,” Goldsmith told Al Jazeera.

“And expect 50 or so dangerous terrorists to be locked up indefinitely in Guantanamo when he leaves office in January.”

Follow James Reinl on Twitter: @jamesreinl