President Barack Obama already is hearing opposition from his political right over a coming plan to close the Guantánamo Bay, Cuba, detention facility — and soon he will feel pressure from groups on his left.
A coalition of human rights and civil liberties advocacy groups say they will join voices on the right about the controversial issue of holding terrorism suspects indefinitely without any criminal charges or a trial. Defense attorneys who represent Guantánamo detainees are also concerned that the quality of life for some may change dramatically if they are transferred to U.S. facilities.
A plan could be announced within days.
“The problem is the plan is likely to not have Guantánamo, but end up institutionalizing the policies of Guantánamo,” said Chris Anders, senior legislative council for the American Civil Liberties Union, meaning setting a major legal precedent for detaining enemy combatants without charges or a trial for an indefinite amount of time.
Lawrence Korb, a former Pentagon official now with the Center for American Progress, said the human rights-civil liberties coalition will provide pressure from Obama’s left flank that will present the White House with some unwanted headlines.
“But I don’t think that pressure will alter the president’s thinking here,” Korb said. “Closing Guantánamo is something he really believes in. … I think [Obama] believes this is legal, and it is the right thing to do.”
Lawmakers Preempt Obama on Guantanamo
There are 112 individuals who are now held at Gitmo. Anders and other experts expect the plan would propose moving about 60 detainees to American prisons and transferring about 50 others to other countries.
A military penitentiary at Fort Leavenworth, Kan., and a military brig in South Carolina are among the U.S. facilities under consideration. Congressional aides say a prison in Florence, Colo., also likely will be identified in an administration proposal, which is expected to lay out what aides describe as a “menu” of just under 10 options.
Lowell Sachnoff, a Chicago-based defense attorney, said he is concerned about the quality of life for a Guantánamo detainee if he is moved to a maximum-security facility in the United States. He is also concerned that some detainees, who have been awaiting release, will be treated in the same manner as "high-value detainees" such as 9/11 mastermind Khalid Shaikh Mohammed.
"These detainees don’t quite live in Hyatts, but they do live in the equivalent of minimum-security facilities," said Sachnoff, whose client has been cleared for release for six years.
"If the government had a magic wand to relocate them to other countries, they would be out right now," he said. "So it makes no sense to put them in solitary confinement in U.S. prisons."
The defense attorneys, human rights groups and watchdog organizations will join voices on the right that could prevent the administration from garnering enough votes for a plan to pass on Capitol Hill.
“Terrorists did not attack us on 9/11 and do not attack us today because of a prison. They attack us for who we are and what we stand for,” Senate Armed Services Committee member Tom Cotton, R-Ark., said recently. “Guantánamo Bay is a safe and humane facility. Moreover, it is an important tool in our counterterrorism strategy as nearly 30 percent of released detainees are confirmed or are suspected of having returned to terrorism.”
Laura Pitter, senior national security counsel at Human Rights Watch, said she wants the plan to address indefinite detention without criminal charges.
“The administration believes they have the legal right to detain individuals until the end of hostilities,” Pitter said. “And the courts have deferred to the administration over detainees … even when the [government’s] evidence was not reliable.”
Anders and Pitter said the coalition is gearing up to take their anti-indefinite detention message to Capitol Hill via meetings and letters to lawmakers. Anders anticipates the coalition doing “a lot of press” interviews and activities to distribute their message beyond the Washington Beltway.
Though Obama will find himself somewhat boxed in by lawmakers and groups from both sides of the aisle, he has a potential escape hatch should his plan die in either chamber: Article II of the Constitution.
A potential trial balloon for this legal route was floated Sunday in a Washington Post op-ed by two former Obama administration officials, Gregory Craig and Cliff Sloan. Craig was White House counsel from 2009 to 2010. Sloan was Obama’s special envoy for closing the Guantánamo facility from 2013 to 2014.
Their column declared the president has the Constitutional authority to move detainees from Guantánamo Bay and shutter the facility. What’s more, it called congressionally passed restrictions — that Obama has signed into law — on monies to shutter Guantánamo “unconstitutional.”
The White House, so far, has done little to distance itself from using an Article II argument to shutter the facility. On Monday, White House Press Secretary Josh Earnest told reporters he was not aware of such a strategy under consideration within the administration — but he also refused to take it off the table.
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