Obama’s Gitmo Closing Plan: Political Cover for When Obama Declares He Will Go It Alone

By Cully Stimson | February 24, 2016 | 10:37am EST
President Barack Obama, accompanied by Vice President Joe Biden and Defense Secretary Ash Carter, speaks in the Roosevelt Room of the White House in Washington, D.C., Feb. 23, 2016, to discuss the detention center at Guantanamo Bay, Cuba. (AP Photo/Pablo Martinez Monsivais)

As President Barack Obama delivered his speech on closing Guantanamo from the Roosevelt Room in the White House, his plan to close the terrorist detention facility was delivered to lawmakers. The 9-page plan–read together with the administration’s legal analysis of the immigration consequences if some of the remaining 91 Guantanamo detainees were brought to the United States–was predictably vague on crucial details and landed with a dull thud on Capitol Hill, and for good reason.

The administration calls the document sent to the hill a plan, but it is not so much as plan as it is a sketch of what they have done to date. The “plan” includes four parts:

  • details on the transfer process for the 35 detainees cleared for transfer and the security guarantees associated with such transfers
  • how the administration will continue to review remaining detainees
  • what is happening in military commissions proceedings
  • and options for what to do with the remaining law of war detainees, including bringing some to the United States.

Left unaddressed are the most important details of any serious closure plan, including but not limited to the location in the United States where the administration wants to send some detainees, a specific cost analysis for that state-side facility, and specific plans for what the administration plans to do for the disposition of future detainees.

However, the most important part of any Guantanamo closure plan must be a thorough legal analysis of what additional rights and privileges a detainee could argue for or receive once he is brought to the United States, and, the litigation risk of bringing detainees to the United States.

The administration is counting on the Congress relying on their immigration legal analysis, found here, and not the broader constitutional and other legal issues. But buried within footnote one of the administration’s immigration analysis is the following statement, “This report focuses on the specific information sought by the reporting requirements in section 1039 and does not purport to address all issues presented by, or that may arise from, the relocation of detainees from Guantanamo to the United States.”

And to date, the administration has not addressed all such legal issues in a publicly available document.

Congressman Mac Thornberry, R-Texas, Chairman of the House Armed Service Committee, reminded the president via a letter two weeks ago that the plan, pursuant to the law, must address the following:

  • The specific facility or facilities that are intended to be used to hold individuals
  • The estimated costs associated with the detention of individuals, including the costs of improvements, additions, or changes to each facility; construction of new facilities; maintenance, operation, and sustainment of any such facility; the cost of security; military, civilian, and contractors support personnel and the like.

The public plan does not identify a specific facility in the United States where the administration would like to bring Gitmo detainees. The classified annex to the plan may contain the locations.

The plan asserts that the cost to operate the detention facility was approximately $445 million last year, and that if 30-60 detainees were brought to the United States, the yearly operating cost would be $140 to $180 million less per year. At the same time, the administration estimates that there would be a “one-time transition cost at a U.S. facility” between $290 and $475 million, but would, over a ten year period, result in net savings of “at least $335 million.”

The president acknowledged in his remarks that the existence of Guantanamo “does not advance our national security,” that it “harms our partnerships with other countries,” and is “contrary to our values.”

He blamed Congress for “repeatedly” putting restrictions in place that forbids him from closing the facility, while artfully avoiding the fact the he failed to work with the Democrat-controlled House and Senate in 2009-2010 to close the facility in the first place, and the fact that it was his controversial moves in 2009 that turned the Congress against him in the first place, as I have chronicled here.

The administration’s “plan” is not a serious plan. It is a partial report card on actions that both the Bush administration and the current administration has been doing since 2002, when Guantanamo was opened. But it was never meant to be a serious plan in the first place. It is a political fig leaf, meant to provide cover so that the administration can later claim that the “do nothing Congress” refused to budge on Guantanamo, thus forcing the president to go it alone.

Charles "Cully" D. Stimson is a leading expert in criminal law, military law, military commissions and detention policy at The Heritage Foundation's Center for Legal and Judicial Studies.

Editor's Note: This piece was originally published by The Daily Signal.

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