The White House says President Barack Obama’s pledge to close the Guantanamo Bay prison in January is still in place, even though two task forces he set up to review detention and interrogation policies will miss deadlines Tuesday to make recommendations.
On his second day in office, Obama issued executive orders setting six-month deadlines for one task force on current and future detainees, and for another panel to look at how prisoners captured in the future should be interrogated.
However, major issues related to the new policies remain unresolved, and Congress has complicated the effort with legislation last month that restricts Obama’s ability to ship detainees out of the prison at Guantanamo Bay, officials said Monday.
During a background briefing for reporters by senior administration officials, one said there was “good reason” to extend the detention review by six months and the interrogation review by two months.
“The issues are complex,” the official said. “They have a long history both in terms of contentious debate within the country and the Congress and elsewhere. They have been the subject of a lot of litigation.”
Asked if they still plan to close Guantanamo by January, the official said, “That is our goal. That is what we’re working towards.”
“I think we’re all comfortable with where we are in the process,” another official said. “These are hard, complicated and consequential decisions. I mean let’s not kid ourselves. What we’re trying to do is make sure we make the right decisions.”
Outside analysts said the delay in the task force reports signaled that Obama will not meet his self-imposed deadline to close the Guantanamo prison by January.
“At this point, I think it’s virtually impossible that they make that—a delay is almost inevitable,” said Matthew Waxman, a Columbia Law School professor who handled detainee issues at the Pentagon and the State Department under President George W. Bush. “I just don’t see them moving [the Guantanamo prisoners] into the U.S. until they have got their policy and legal strategy in place for what to do long-term, and I don’t see that getting resolved anytime soon.”
Waxman also said he was not surprised that the task force reports weren’t ready. “The issue is just extremely complicated,” he said. “The legal, political and operational terrain keeps shifting….One of the challenges here is one cannot ever get entirely ahead of those changes.”
The senior officials did not say explicitly what complications led to the need for extensions. However, they hinted that one factor was Congress’s move to restrict Obama’s ability to bring Guantanamo prisoners to the United States.
“As you’ve seen, this has been an issue that’s been a lot of concern in Congress. There’s been a lot of interest in it,” one official said.
The rider to a supplemental appropriations bill signed by Obama and in effect through September 30 bars release of Guantanamo Bay prisoners in the U.S. The legislation also requires advance reports before they are transferred abroad or brought to the U.S. for trial or further imprisonment.
The Obama administration officials repeatedly sought to shift blame onto the Bush administration for postponing key decisions about Guantanamo and for leaving the records about individual detainees in shambles.
“These are issues, frankly, that could have been and should have been wrestled with over the course of the last seven years. Regrettably, frankly, they weren’t,” one senior Obama official said. “Comprehensively and robustly, in our view, this administration is doing that.”
The decision not to stake out a new Guantanamo policy this week effectively punts the issue to the end of September, when the Congressional restrictions run out. When new funds are needed for the Justice and Defense Departments for the next fiscal year, Obama and lawmakers will have to hash out the terms of any future restrictions on the Guantanamo prisoners.
The postponement could also have the political benefit of pushing the bulk of the Guantanamo issue clear of other legislative priorities that currently are at critical junctures in Congress -- chiefly health care reform. The administration is working with lawmakers on one part of the detention puzzle: pending legislation to revamp the military commissions process.
But there is still little definition to Obama’s most controversial proposal: his suggestions that he may seek to impose “preventive detention” without charge on dozens of Guantanamo prisoners who can’t readily be tried in military or civilian courts.
Officials signaled their intention to try to separate that issue from the broader issue of whether the U.S. should have a preventive detention law that would govern war-on-terror prisoners currently held in Afghanistan as well as those who may be picked up in the future.
“We have been left with a population at Guantanamo that we have to focus on initially,” one official said. The official indicated that, while no final decisions have been made, Obama is considering using his authority from the Authorization for Use of Military Force passed by Congress in 2001 to set up a process to hold prisoners without charge, but with regular reviews. The official spoke of consulting with Congress, but did not mention any plan to seek a new law to govern such a system.
Civil liberties advocates said they are opposed to any system of preventive detention, whether by executive order or under a new statute. “Indefinite detention violates our laws, Constitution, and tradition. Any attempt to perpetuate such a system at Guantanamo, where prisoners have been illegally imprisoned for over seven years, or to create some new system for other detainees in the future, will only undermine, not restore, the rule of law,” Jonathan Hafetz of the American Civil Liberties Union said.
Administration officials also said they are making progress with Congress on a new law to govern military commissions, though they acknowledged there has been no decision on where such commissions would be held. They declined to rule out holding them at Guantanamo and would not answer questions about whether such proceedings would be consistent with Obama’s order to close the facility by January.
The detention policy panel filed a “preliminary report” Monday detailing its views on military commissions and laying out some guidelines for making decisions about whether detainees should face civilian or military courts.
In addition to the two task forces which were supposed to finish their work this week, a third task force is continuing its work reviewing the cases of individual Guantanamo detainees. Officials said that panel has completed its review of more than half of the roughly 240 men detained there when Obama took office.
Aides to Obama had hoped that his popularity abroad would make countries more willing to accept Guantanamo prisoners. However, since January 20, only 11 prisoners have been sent to other countries for release or further detention; one man was transferred to New York City to face trial in the 1998 bombings of U.S. embassies in Africa.
For most detainees, the case reviews have not resulted in any immediate change since foreign countries remain reluctant to accept prisoners, Congress has precluded their release in the U.S., and a legal scheme for further detention remains in the works.
“We’re making good progress with a number of European countries and countries outside of Europe and, of course, famously, Palau,” one official said, referring to a Pacific archipelago nation that has agreed to accept some detainees.