- The Washington Times - Sunday, January 20, 2013

It was one of Barack Obama’s marquee campaign promises in 2008: Close the detention facility at Guantanamo Bay, Cuba, which would erase a terrorist recruiting tool and a black spot on America’s human rights record.

Hours after his inauguration in 2009 Mr. Obama halted all commission trials at the detention facility for suspected terrorists, and then two days later, on Jan. 22, he signed an executive order committing to close the prison.

But as he took the oath of office Sunday in a private ceremony at the White House, 166 detainees remain at the prison — officially named Camp Delta — and his failure to close it has become emblematic of a first term in which his major successes were matched by some of his failures, particularly where he ran into bipartisan opposition in Congress.

It’s not for lack of a public commitment that the camp remains open. Mr. Obama repeatedly says he still wants to shut it down and has threatened to veto bills that curtail his authority to do so.

Still, he has not put muscle behind those threats and signed the latest defense policy bill this month that extends a ban on transferring detainees to the U.S. and makes it tougher to send them to other countries.

Human rights groups said that signature makes it difficult for him to close the prison before his second term is complete.

“The problem that the president has is as long as he hangs on to some of these policies — military commissions and indefinite detention — he’s not going to be able to close Guantanamo,” said Christopher Anders, legislative counsel for the American Civil Liberties Union. “Four years seems like a long time, but the process of closing is going to be at this point a couple-year process.”

The executive order he signed in 2009 called for a full review of all cases, and he moved to halt ongoing military commission trials.

But bipartisan objections in Congress thwarted his drive to build a prison inside the U.S. and tied his hands on transfers outside of Guantanamo.

With few other options, Mr. Obama backtracked by issuing an executive order to restart the trials. He also has embraced detention without charge or trial.

Critics of Guantanamo say the president missed a window in 2009 when he was at his peak of power and had huge majorities in Congress, and could have made more headway.

By the time Republicans won control of the House in the 2010 elections, though, Mr. Obama’s leverage was gone and he faced opposition from congressional Republicans and Democrats to closing Guantanamo.

It’s one of a series of promises he has been unable to keep as major victories on issues such as health care and the stimulus were matched with defeats on his pledges to tackle climate change or his push for labor-friendly rules for membership in unions. Both of those were halted by bipartisan opposition.

Other campaign promises fell victim to an already crowded legislative agenda, tight budgets and deal-making, such as when he gave up some of the concessions he wanted on health care in order to win passage of the broader bill.

Fact-checking website PolitiFact says Mr. Obama kept 45 percent of his 2008 promises, compromised on 24 percent and either stalled on or broke the others.

Closing Guantanamo fell into that latter category.

Camp Delta’s population held steady for most of 2012. The only changes were from several detainees who completed their sentences and were released to foreign countries and one who died at the prison. Reports said he committed suicide.

The facility holds 166 detainees now, down from 242 when Mr. Obama took office. Many of those who remain have been cleared for release by the Defense Department.

Another 604 detainees have been transferred either to their home countries or to third countries willing to take them. Nearly 28 percent of those have returned to the battlefield to fight the U.S., according to American intelligence community estimates.

John Yoo, who as a top lawyer in the George W. Bush administration helped craft the legal framework for terrorism policies, said the U.S. will have a place to put detainees as long as it is fighting al Qaeda.

“Better to hold them in a highly secure facility, such as Gitmo, than mixing them in with the general population of a prison in the United States,” said Mr. Yoo, who is now a law professor at the University of California, Berkeley.

He praised Mr. Obama for adopting the Bush tools of indefinite detention and military commissions, which he said are the best ways to balance fair trials with the need to preserve intelligence secrets.

“It is obvious that the Obama administration, once in office, pulled a 180-degree turn on terrorism policy,” Mr. Yoo said. “I would rather they be hypocritical and protect the nation’s security than maintain a foolish inconsistency.”

Congress has put up two roadblocks to transferring prisoners. The first is a ban on moving detainees to the U.S. and a prohibition on buying or converting a prison inside the country to hold detainees.

The second is a high bar on sending detainees to other countries. Lawmakers required the Defense Department to certify that released detainees won’t become threats — something the Obama administration has been reluctant to do.

Mr. Anders said Mr. Obama could pressure the next defense secretary to issue those certifications, which could help lower the detainee population.

The end of combat operations in Afghanistan could be another chance for the president to make his case.

“At that point, I think the argument for continuing to hold people who were picked up particularly in that area of the world, when the conflict is over and the U.S. has pulled out, I think is going to be impossible to maintain,” Mr. Anders said.

For now, Mr. Obama remains trapped in the middle.

He threatened to veto the defense policy bill that passed Congress late last year if lawmakers kept their ban in place, but once again he relented — though not without issuing a statement decrying the situation.

“I continue to oppose this provision, which substitutes the Congress‘ blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees,” he said.