Policy

Veto Likely Over GOP Gitmo Limits in Defense Spending Bill

House Republicans turned the screw this week on President Barack Obama's attempts to shutter the Guantanamo Bay prison before he leaves office.

They even went so far as to declare in legislation that not a single prisoner may leave there.

In Thursday’s debate on the $575.8 billion Defense spending bill (HR 5293), the House adopted, 226-194, an amendment by Republicans Mike Pompeo of Kansas and Ron DeSantis of Florida that would block funding for the office of Obama’s special envoy in charge of closing the Cuban prison.

Then the chamber voted, 245-175, for an amendment by Colorado Republican Doug Lamborn that would prevent any money being spent to even study U.S. sites that might be alternative places to house Guantanamo’s detainees.

Those votes came on the heels of the House’s adoption of an even more sweeping amendment by voice vote on Wednesday night. Written by North Carolina Republican Richard Hudson, the provision would, if enacted, be the most complete block yet on moving prisoners out of Guantanamo.

The one-sentence amendment would simply bar the use of funds in the bill to transfer detainees from Guantanamo anywhere. The amendment would ensure that the 30 prisoners (out of 80) who have been approved to be let out would not go anywhere.

“We’re at war with radical Islamic extremists, yet our commander-in-chief is so focused on closing Guantanamo Bay that he ignores the danger posed by the terrorists detained there now who have been cleared for release,” said Hudson on the House floor Wednesday ahead of the vote.

In response, New York Democrat Jerrold Nadler decried the amendment.

“It’s clearly unconstitutional, it’s clearly immoral and it’s against everything we stand for,” Nadler said.

“Even if you find someone’s innocent,” Nadler added, “he must stay in jail forever.”

Christopher Anders, deputy director of the Washington Legislative Office of the American Civil Liberties Union, agreed with Nadler’s assessment.

“Not only is it wrong for Congress to ban even cleared detainees who have never been charged or convicted of a crime from leaving, but it is also unconstitutional,” Anders said in an email to CQ. “It is a clear violation of the constitutional prohibition on bills of attainder — when Congress tries to act as judge and jury, rather than lawmakers.”

Veto Threat

Anders and other experts believe the more moderate Senate will probably not accept the Hudson amendment as is. But if the provision were to survive in the final bill, Anders predicted, a White House veto would be “certain.”

Indeed, the White House has previously threatened to veto other bills over less complete restrictions on transferring detainees from Guantanamo.

And the president’s advisers have already threatened to veto the House bill at issue, the fiscal 2017 Pentagon spending measure, citing a number of concerns, including four Guantanamo provisions that were in it before the three amendments were added. These included now-familiar restrictions on building prisons in the United States to house Guantanamo prisoners and limits on allowable transfers to other countries.

"Operating the detention facility at Guantanamo weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists," the White House Office of Management and Budget said in a June 14 Statement of Administration Policy on the bill. "These provisions are unwarranted and threaten to interfere with the Executive Branch's ability to determine the appropriate disposition of detainees and its flexibility to determine when and where to prosecute Guantanamo detainees based on the facts and circumstances of each case and our national security interests."

Myles B. Caggins III, a spokesman for the White House’s National Security Council, said in an email to CQ Thursday that the administration wants "to work with Congress to find a solution to close Guantanamo."

"The Administration has continued to reduce the population of detainees by responsible transfers to foreign countries for detainees who have been designated for transfer; prosecutions of detainees who can be prosecuted; providing the remaining detainees not designated for transfer with periodic reviews to assess whether their continued detention remains necessary; and exploring individualized disposition options for the remaining detainees," Caggins said.

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