By returning to the intractable and charged issue of closing the detention facility in Cuba, Obama has regenerated a political battle that could prove as demanding as gun control, immigration or health-care reform — and as defining for his legacy.
In a speech at the National Defense University on Thursday, Obama recommitted himself to shuttering the facility and announced a series of steps to kick-start that process.
“He should get credit for an important speech,” Harold Koh, former legal adviser at the State Department and an advocate of closing Guantanamo, said in an interview. “But now the time for talking is over and the administration needs to act and act quickly if they want to be taken seriously. This is the president’s last, best chance.”
The detention of 166 men at the facility drew the president’s fresh attention in part because of a mass hunger strike there. On Friday, 103 detainees were fasting and 32 were being force-fed twice a day, according to a spokesman for Joint Task Force Guantanamo.
“Detainees follow all coverage of Guantanamo closely, including the president’s speech, and the post-speech commentary, analysis and editorials,” said Lt. Col. Samuel E House, the spokesman. “There is interest and discussion, but no discernible reaction.”
Among the current population at Guantanamo, 86 detainees have been cleared for transfer home or resettlement in a third country, according to U.S. officials. Former officials and human rights activists said the president needs to quickly start moving some of these men out of Guantanamo to build momentum for the much tougher political battle of convincing Congress that some detainees will have to be brought into the United States.
And, they said, the administration will have to show more steel than it did in 2009 to face down political opponents.
Although Congress has barred the administration from moving Guantanamo detainees into the United States for any reason, some key Republicans on Capitol Hill seemed to suggest after the speech they might reconsider the issue as part of a broader bipartisan plan on detention.
“One red line is you don’t want to bring terrorist detainees to the United States with all the risk that comes with it, and all the cost that comes with it, without a substantive, robust and bipartisan detainee policy going forward,” Rep. Howard P. “Buck” McKeon (R-Calif.), chairman of the House Armed Services Committee, said Friday.
But Sen. Kelly Ayotte (R-N.H) said, “There is bipartisan opposition in Congress to bringing foreign terrorists at Guantanamo to U.S. soil, as evidenced by the 54-41 vote on my amendment to permanently prohibit the transfer of Guantanamo detainees to the United States.”
White House officials said Friday that Obama will try to drive the policy forward by naming two special envoys, one in the State Department and one in the Defense Department.
“How they fit into their respective bureaucracies is still being worked out,” said a White House official.
Among the first steps the administration can take is to have the secretary of defense certify to Congress that it is in the national security interest to transfer a particular detainee. Former defense secretary Leon Panetta was unwilling to make the certification, based on the advice of counsel at the Pentagon, and the White House did not insist on it.
Obama has committed to certify prisoners for transfer. A critical question will be the number and pace of transfers. At the State Department, there have been advocates of a major and rapid transfer of detainees, particularly to Yemen. The Pentagon and some in the intelligence community have been resistant to any kind of “big bang” movement. The result has been stalemate.
Fifty-six Yemeni detainees have been cleared for transfer home and the administration is likely to be already pressing for diplomatic and security guarantees from the new government of President Abed Rabbo Mansour Hadi to begin accepting some of them.
In the interim, detainees of various nationalities, including from Saudi Arabia, Algeria and Morocco, could be moved relatively rapidly, according to a U.S. official. The certification process requires a 30-day notice to Congress, and talks with receiving governments will also take some time.
Obama also signaled in the speech that he would like to find a site in the United States to hold military commissions. A second U.S. official said Friday that up to a dozen detainees, including six already being prosecuted, could be put on trial by the military.
There are several additional viable cases if the administration could bring detainees into federal court where, unlike military tribunals, defendants could be charged with material support of terrorism, according to the second official, who spoke on the condition of anonymity because he was not authorized to publicly discuss potential legal proceedings.
There is still a population of several dozen men who cannot be prosecuted and whom the administration deems too dangerous to release. Obama did not say how he would handle that population. Their continued detention would require some kind of “Gitmo North,” as some in the military refer to a new holding facility in the United States. Or a number could be transferred home with strict security guarantees.
And some of them might also be willing to accept a plea bargain in federal court that would see them spend some years in a maximum-security federal prison in exchange for a certain release date.
Julie Tate contributed to this report.