New Report Says Obama Faces Numerous Legal Hurdles Over Guantanamo Closure
Jason Leopold
June 3, 2013
A new report issued by the nonpartisan research arm of Congress says President Obama will face significant legal challenges in attempting to shutter the Guantanamo Bay detention facility, where more than 100 prisoners have been waging a hunger strike since February.
The 59-page report, dated May 30, was issued by the Congressional Research Service (CRS) and obtained by Secrecy News. It was issued nearly two weeks after President Obama delivered a speech defining his administration’s new counterterrorism priorities.
Obama failed to fulfill a promise he made on the campaign trail and immediately after he was sworn into office in 2009 to close the facility within a year. He blamed Congress for hindering his efforts, an assertion called into question by civil liberties and human rights organizations, which noted that a provision in the National Defense Authorization Act (NDAA) provided Obama and the Secretary of Defense with the authority to bypass certain restrictions in the NDAA implemented by Congress pertaining to the transfer of Guantanamo prisoners.
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In his prepared remarks May 22, Obama said he would lift a moratorium barring the transfer of 86 prisoners to Yemen and other countries and ask the Pentagon “to designate a site in the United States where we can hold military commissions.”
A White House official, who spoke to reporters on background in a conference call held hours prior to Obama’s speech, said the negative publicity revolving around the hunger strike prompted Obama to take steps to try and close the prison.
“Most proposals to end the detention of foreign belligerents at Guantanamo contemplate the transfer of at least some detainees into the United States, either for continued preventive detention, prosecution before a military or civilian court, or in the case of detainees who are not deemed a threat to U.S. security, possible release,” according to the CRS report.
However, the report said, any attempt to transfer prisoners to the United States “would raise a number of legal issues.”
“The nature and scope of constitutional protections owed to detainees within the United States may be different from those available to persons held at Guantanamo or elsewhere,” the report states. “This may have implications for the continued detention or prosecution of persons transferred to the United States. The transfer of detainees to the United States may have additional consequences, as some detainees might qualify for asylum or other protections under immigration law.”
In 2009, former White House Counsel Greg Craig backed a plan to resettle Chinese Muslim Uighurs detained at Guantanamo cleared for release to Northern Virginia. But the proposal drew the ire of Democrats and Republicans and led a majority of Congress to pass new restrictions barring the administration from spending funds to shutter the prison.
Even if the Obama administration were to move forward with a plan to transfer Guantanamo prisoners to the U.S., it may face another set obstacles under immigration law that could scuttle the effort, the CRS report noted.
“The Immigration and Nationality Act (INA) establishes rules and requirements for the entry and presence of aliens in the United States, and provides grounds for the exclusion or removal of aliens on account of certain activities,” the CRS report said.  “The INA generally bars the entry into the United States or continued presence of aliens involved in terrorism-related activity. Under current law, most persons currently detained at Guantanamo would generally be barred from admission into the United States on terrorism- and other security-related grounds under normal circumstances.
“Even if a detainee is not inadmissible or removable (“deportable”) on such grounds, he may still be inadmissible or removable under other INA provisions. Accordingly, even in the absence of recent legislative enactments barring the use of funds to release Guantanamo detainees into the United States, the INA would generally preclude most detainees from being released into the country, as such aliens would be subject to removal under immigration law.
But, the CRS report said, “it could be argued that the 2001 [Authorization to Use Military Force], which grants the President authority to use all ‘necessary and appropriate force’ against those responsible for the 9/11 attacks, impliedly authorizes the President to detain captured belligerents in the United States, even though such persons would generally be barred from entry under the INA.”
“Even assuming that the INA’s restrictions on alien admissibility are applicable to military detainees, the executive branch could still effectuate their transfer into the United States pursuant to its ‘parole’ authority,” according to the report. “In the immigration context, parole is a discretionary authority that may be exercised on a case-by-case basis to permit inadmissible aliens to physically enter the United States, including when the alien’s entry or stay serves a ‘significant public benefit.’”
House Bills Thwart Guantanamo Closure Efforts
But those concerns are mooted by the fact that the Obama administration opposes the transfer of Guantanamo prisoners into the US. Indeed, the administration made that point in a statement issued Monday by the Office of Management and Budget (OMB), in response to a section in the House Homeland Security appropriations bill, which restricts the administration from using funds to transfer Guantanamo prisoners.
“The Administration strongly objects to and has constitutional concerns about the provisions that limit the use of funds to transfer detainees and otherwise restrict detainee transfers,” OMB’s statement said. “Although the Administration opposes the release of detainees within the United States, section 529 [of the spending bill] undermines our national security and raises significant separation of powers concerns.”
The CRS report, citing published news stories, said the refusal by the United States to “resettle detainees on its territory may be contributing to the reluctance of other countries to accept more detainees for resettlement.”
Furthermore, a defense spending bill drafted by House Armed Services Chairman Howard “Buck” McKeon, R-California, would keep Guantanamo open by blocking the transfer of prisoners to the U.S. or a foreign country. The bill contains several sections that are a direct response to Obama’s proposals to transfer prisoners out of Guantanamo.
“No amounts authorized to be appropriated or otherwise made available to the Department of Defense may be used during the period beginning on the date of the enactment of this Act and ending on December 31, 2014, to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress,” says a section of the bill.
McKeon’s bill earmarks $247 million to upgrade Guantanamo, which includes the construction of new military facilities. In April, Gen. John Kelly, the commander of SOUTHCOM, which has oversight of the prison, testified before the House Armed Services Committee and said additional funds were needed to build, among other projects, a new $49 million camp for 15 former CIA captives held there.
Rep. Adam Smith, the ranking Democrat on the Armed Services Committee, was highly critical of McKeon’s legislation.
“This bill prevents the Administration from closing the detention facility at Guantanamo Bay, Cuba, by banning the transfer of detainees, and the construction or modification of facilities in the United States to house detainees,” Smith said in a statement posted on his website. “This is a ridiculous waste of money and we should be closing this expensive and unnecessary facility.”
The congressman said he intends to introduce “multiple amendments to help close” Guantanamo.”
Separately, the Obama administration opposed a section in a military construction and veterans affairs spending bill introduced Monday, which prohibits funds from being used “to construct, renovate, or expand any facility in the United States, its territories, or possessions to house any individual detained at United States Naval Station, Guantanamo Bay, Cuba, for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense.”
OMB, in a statement, said the administration, “strongly opposes” the provision because it would “constrain the flexibility that the Nation's Armed Forces and counterterrorism professionals need to deal with evolving threats, intruding upon the Executive Branch's ability to carry out its mission.”
Meanwhile, CRS says the Obama administration has its work cut out for it.
“The issues raised by the proposed closure of the Guantanamo detention facility have broad implications,” the report said. “Executive policies, legislative enactments, and judicial rulings concerning the rights and privileges owed to enemy belligerents may have long-term consequences for U.S. detention policy, both in the conflict with Al Qaeda and the Taliban and in future armed conflicts.”
“Whether future diplomatic efforts will effectuate the transfer of some or all of these persons to third countries remains to be seen.”