Looks like Congress got its bipartisan word on Gitmo after all. Among the bills passed during Wednesday’s rush to close the 111th Session was the 2011 Defense Authorization Act, the precursor to fully budgeting the DoD for the year. Buried in that bill was the codicil passed by the House earlier in the month forbidding the transfer of any detainees to the US for trial — leaving Barack Obama and Eric Holder no options for federal trials:
Nestled among a string of improbable victories President Barack Obama racked up in the lame-duck Congressional session is legislation containing the most debilitating setback to date to his plan to close the military prison at Guantanamo Bay and send many of its detainees to trials in civilian courts in the U.S.
Language contained in the 2011 National Defense Authorization Act passed by the House and Senate on Wednesday bars the use of Pentagon funds to transfer any Guantanamo prisoner to the U.S. for any reason, including a trial. Some supporters of plan Obama announced on his first full day in office to close the prison said the passage of the legislation signals near-complete capitulation by the president.
“Obama’s original plan is in shambles,” said David Remes, an attorney for 14 Yemeni detainees at Guantanamo. “From the outside it appears to be in shambles because he was never sufficiently committed to the success of his own plan and, as a result, Republicans were able to mobilize to turn the issue against him and he provided the Congressional Democrats no leadership.”
Of course, Barack Obama could veto the defense measure, but that has its problems as well. First, the language of the act was written by his own party, a pointed rejection on bipartisan lines of his stated Gitmo policy. He’s not going to fare any better in the next Congress, either. If he tempts fate, he could wind up with a bipartisan override of his veto in the 112th, which would make him look weak and far outside the mainstream on detention and adjudication policy. Even if Obama manages to avoid a veto override, Congress still has to fund the DoD and the DoJ, and a Republican House could simply strike funds elsewhere to achieve the same purpose.
Senate Democrats don’t seem interested in fighting Obama’s battle on this point, not even their leadership. Dick Durbin, the #2 Democrat in the upper chamber, told Politico that the bill reflects “the political reality”:
Sen. Dick Durbin (D-Ill.), one of Obama’s most loyal allies on Guantanamo and detainee issues, said the restrictions were simply an acknowledgement of the lack of support in Congress for Obama’s approach.
“I think it’s necessary to include the language,” Durbin said. “I supported the president’s position on [the Illinois prison] initially — that issue has been resolved politically, and this bill, the language in it, reflects the political reality.”
Before the trial of Ahmed “Foopie” Ghailani, Obama’s fellow Democrats might have had more of a taste for fighting. However, after Eric Holder insisted that the DoJ would have no trouble making its case despite Ghailani’s capture and interrogation abroad, the judge threw out the one witness that could connect Ghailani to the actual bombings. The resulting acquittal on 284 of 285 accounts embarrassed Democrats who publicly supported Holder at that time, and they’re not going to climb out on that limb again.
Of course, Obama could simply start adjudicating these cases through the military commissions repeatedly authorized by Congress for that exact purpose. If Obama wants to make changes to the commission system, he can bring those to Congress. At the moment, though, it seems as though the White House wants to pout instead by using an EO to adopt the indefinite-detention philosophy that Obama decried in his predecessor — who at least started moving detainees through the commission system, a process Obama stopped on taking office. Perhaps instead of describing the action of Congress as making Obama’s Gitmo policy a “shambles,” it might be more accurate that it was a reminder for Obama to follow the law.