The fatal flaw in Obama’s plan to close Guantanamo Bay

The Obama administration has released what it says is a new plan for closing the prison at Guantanamo Bay. It includes, among other things, a proposal to transfer a number of the prisoners to an as-yet-undetermined facility on the US mainland for trial or indefinite detention.

But, based on the text, it appears to be less of a specific plan and more of a general road map. It definitely doesn't solve the biggest barrier to closing Guantanamo: that it would require cooperation from Congress, which opposes any such effort.

What follows is a quick and dirty guide to the plan, how it's supposed to work, and the biggest challenge for implementing it.

How the plan works

(Chip Somodevilla/Getty Images)

• 91 prisoners are still detained at Guantanamo Bay, all indefinitely, until the United States can resolve their legal status and transfer them elsewhere.
• 35 will be transferred to foreign countries: The Obama administration is empowered to transfer prisoners to another country, where they will be monitored, provided the Department of Defense and other relevant agencies deem it safe. According to the plan, "35 have been determined to be eligible for transfer by relevant national security departments and agencies." It doesn't say whether the US has found countries to accept them, though.
• 10 are in the military trial process: The administration is also permitted to try Guantanamo detainees in special military courts. "Three active cases involving seven accused are in the pretrial phase," the plan says, while three detainees have pleaded guilty and are currently being sentenced. Convicted detainees could potentially be transferred to another country's prison and, if they've already served their sentences, released to another country.
• 22 are earmarked for tribunal or US domestic trial: The US government believes this group of inmates can successfully and safely be tried in court, and would like to prosecute them — ideally in civil rather than military courts, but Congress has made that difficult (more on that in a second).
• The remaining 34 are TBD: The Obama administration isn't sure what it would do with these cases, but lists a few options: eventually clearing them for release or for trial, transferring them to a foreign country for a trial there, or transferring them to a specially designed US prison for continued indefinite detention. That US prison is also TBD.

This last bullet shows that the "plan" is more of a wish list detailing what the administration would do if they got the legal authority from Congress. But given that Congress has been the biggest challenge to Obama's ambition to close Gitmo all along, eliding that problem makes this plan not much.

For example, the plan does not specify how the administration would go about designating and creating a US prison for Guantanamo detainees. It says that "the Department of Defense identified 13 potential facilities for the purpose of building a cost estimate," but it does not specify any legal authority for actually transferring detainees from Guantanamo to one of those facilities.

Instead, it merely says, "The administration will work with Congress to relocate them from the Guantanamo Bay detention facility to a secure detention facility in the United States."

The big problem

Chip Somodevilla / Getty Images News

There's a reason the Guantanamo plan is so vague: Congress has almost totally tied the administration's hands. It is currently illegal, under US law, to transfer Guantanamo detainees to the United States for trial, hold them in a facility on US soil, or even use federal funds to prosecute them in civil court.

Congress put restrictions on closing Guantanamo Bay for a number of reasons, ranging from the ideological (some believe that suspected terrorists are a special kind of threat who really ought to be detained indefinitely) to the political (bringing Guantanamo inmates into the US is unpopular).

Speaker of the House Paul Ryan's statement on Obama's new plan strongly suggests the calculus hasn't changed one bit.

"After seven years, President Obama has yet to convince the American people that moving Guantanamo terrorists to our homeland is smart or safe," Ryan writes. He continues:

He doesn’t seem interested in continuing to try. His proposal fails to provide critical details required by law, including the exact cost and location of an alternate detention facility. Congress has left no room for confusion. It is against the law—and it will stay against the law—to transfer terrorist detainees to American soil. We will not jeopardize our national security over a campaign promise.

Unless the Republican majorities in the House and Senate end up splitting with Ryan here to side with Obama — which seems extremely unlikely — or unless the administration finds some executive action to get around the need for new laws, then Obama's Guantanamo plan will remain just that: a plan. His 2008 campaign promise to close the prison will remain unfulfilled.

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