- The Washington Times - Wednesday, January 18, 2017

It was the defining promise of the early days of the “hope and change” administration: President Obama would signal a new era of U.S. engagement with the world by closing, within a year, the detention center at Guantanamo Bay, Cuba.

On Friday, Mr. Obama will depart the White House having come ever so close to his goal: Just 45 detainees remain, down from the 242 when he took office and from a peak of 684 at the height of the Iraq War in 2003.

Yet the prison is still operating, his successor has promised to start filling it again, and what had been a bipartisan issue for Congress has now become one of the most bitter partisan divides.

Those on both sides of the issue say Mr. Obama had a chance, early on, to make good on his promise. But he didn’t invest the time and effort needed to bend his own party, much less Republicans, to his will.

When he did get to it, in his second term, the moment had passed.

“They didn’t spend the political capital to do that early in 2009, and they didn’t do it in 2010, and by then it was too late,” said Charles “Cully” Stimson, a senior fellow at The Heritage Foundation who was deputy assistant secretary of defense for detainee affairs in the George W. Bush administration, which first established Guantanamo on the site of a U.S. Navy base.

Instead, an issue where there had been some agreement has become a partisan fight, with most Democrats now lining up behind Mr. Obama and Republicans opposing him.

Both Mr. Obama and his Republican opponent in the 2008 election, Sen. John McCain, said the prison needed to be closed, arguing that it had become a recruiting tool for terrorists. “Immediately,” said Mr. McCain, who was a prisoner of war in Vietnam for five years.

President Bush also said he would like to see the prison close.

But the rhetoric at the top of the two parties was not reflected among the rank and file on Capitol Hill. Mr. McCain’s stance quickly turned out to be a minority position in the Republican Party, and Democrats’ support was softer than Mr. Obama had expected.

Democrats retreat

An early test came just before Memorial Day in 2009, only months after Mr. Obama signed his executive order laying out plans for closure. The administration had requested money to begin plotting the shutdown, but the Democrat-controlled Senate, in a series of votes, blocked him. One vote, a 90-6 spanking, stripped the money to close the prison altogether.

“It was an unbelievable week,” said Christopher Anders, deputy director of the American Civil Liberties Union’s Washington office, who has tracked the battle over Guantanamo for years.

He said Republicans were searching for a national security angle on which to attack Mr. Obama after the president denied them chances by continuing operations in Iraq and Afghanistan. He said Guantanamo was one of the avenues of attack that Republicans tried — and it caught both the White House and congressional Democrats off balance.

“There were desperate requests from key Democratic senators for help from the White House, and they didn’t lift a finger to help, and the votes came out very lopsided,” Mr. Anders said. “I think it became very clear to [then-Senate Minority Leader Mitch McConnell] and other senators who were pushing back against Obama that this was a way to try to show weakness, and that the president wasn’t defending himself, the White House wasn’t defending itself and Democratic senators were abandoning them.”

The White House got another chance to begin the Guantanamo closing process later that year, when it announced plans to bring 9/11 mastermind Khalid Sheikh Mohammed and his henchmen to New York for a civilian trial on terrorism charges. But fierce political opposition quickly scotched that idea.

“The wheels came off the bus again, and there it was made worse by some key New York Democrats joining in and raising concerns about this,” Mr. Anders said. “It was basically downhill from there.”

Mr. Obama should have anticipated the opposition. Months earlier, a plan to bring Chinese Uighur detainees at Guantanamo to Virginia had failed, after then-Rep. Frank R. Wolf, Virginia Republican, raised security concerns.

“It becomes a political issue at that point, and President Obama backs down,” said J. Wells Dixon, a senior lawyer at the Center for Constitutional Rights who represents detainees challenging their detention. “If he had accepted those men into the United States, it would have made it easier for him to transfer other men to other countries. It would have neutralized the myth that every person in Guantanamo is dangerous.”

Instead, Republicans and Democrats rushed to rein in the president. By the end of 2010, Congress had voted to impose restrictions preventing Mr. Obama from bringing detainees to the U.S. and severely limiting the executive branch’s ability to ship them to other countries.

Some analysts said Democrats’ votes were less about opposing the closure of Guantanamo and more about the pace and lack of plans from the White House.

Whatever the motivation, the president was forced to heel. He signed the 2011 defense policy bill in January that included the restrictions, just as the new Republican majority took hold in the House, complaining even as he did so that it would “harm national security.”

Along the way, Mr. Obama changed positions. Although he’d opposed indefinite detention during the 2008 campaign, in the Oval Office he came to the conclusion that there were detainees in the war on terrorism who could never be tried and because of security concerns shouldn’t be sent to other countries, where they might find their way back to the battlefield.

The final 45

Enemy prisoners are a fact of war, though the ones at Guantanamo have received far more attention than any others.

Fewer than 800 went through the prison — less than 1 percent of the 100,000 detainees the U.S. held at points during the war on terrorism. Some 75,000 were held in Iraq, and the others were held in Afghanistan, Mr. Stimson said.

Nine men — all the detainees have been male — died in custody at Guantanamo. Of those released, about 30 percent are either confirmed or suspected to have returned to the battlefield. Almost all of those were released by Mr. Bush.

Only 45 detainees remain in the facility after Mr. Obama’s final release of 10 inmates this week.

Of those, nine have been cleared for transfer by the administration’s review process. Another 26 are being held without charge or trial.

If the war on terrorism ended, then the detainees would have to be released as a matter of law, Mr. Stimson said.

“It’s easy to be superficial on this topic,” he said. “It’s hard to understand the history and look at it with all its warts and blemishes. The only thing you can say with some degree of confidence is that if you’re a detainee and you’re there on Jan. 20, you might be there a little longer.”

The White House declined to comment to The Washington Times, but spokesman Josh Earnest, recounting the debate in his last press briefing this week, said the failure was “not for lack of trying.”

“The only reason it didn’t happen is because of the politics that members of Congress in both parties, frankly, played with this issue,” he said. “And it has put the United States in a position where, because of the obstacles erected by Congress, terrorist organizations have a powerful recruiting tool, and millions in taxpayer dollars are wasted to operate this large facility for 45 people, potentially less.”

‘Back at this’

Mr. Dixon said members of Congress did turn Guantanamo into a political issue, but he said early leadership from the White House could have produced a very different outcome.

“Here’s where we would be: Guantanamo would be closed, the 9/11 trial would have concluded years ago, and if those defendants had been convicted and sentenced to death they would have been executed years ago,” he said. “But instead we’re more than 15 years past the attacks of Sept. 11 and we are now further away from trial in the 9/11 military commission case than we were when President Obama took office,” he said.

The White House did eventually begin to get its footing on the issue, beginning with an April 2013 press conference, months after Mr. Obama handily won re-election to a second term.

“I’m going to go back at this,” the president said.

The administration would go on to produce a plan to shutter the prison, though it got no traction in a Republican-led Congress. Behind the scenes, though, the Defense and State Departments were making the case for transfers to other countries.

That helped stiffen spines among Democrats, who began to vote in stronger numbers for closing the prison. It also swayed some Senate Republicans, who, while not ready to shutter the prison, did rebuff House Republican efforts to stop all transfers, even to third countries willing to take Guantanamo detainees.

“I think really from that point forward the tone changed at the White House and throughout the administration it became a meaningful goal,” Mr. Anders said.

Keeping transfer powers to other countries proved critical for Mr. Obama. He sent nearly 200 detainees abroad, helping cut the population by 80 percent.

He also began to take on the fierce opposition from Congress.

In 2014, he secretly arranged to transfer five high-profile Taliban detainees out of the prison in exchange for the release of U.S. Army Sgt. Bowe Bergdahl. Congress would later deem the move illegal, but there was little lawmakers could do after the fact.

Sen. Mark R. Warner, a Virginia Democrat who voted against closure in the early 2009 Senate vote but who now backs shuttering the prison, said he was swayed by what he had seen from his time on the Senate Select Committee on Intelligence and from the progress Mr. Obama has made in reducing the population.

“Back in 2009, the number of individuals there was much higher. So it is less an irritant now but it still is an enormous irritant,” he said. “If there is a way to house these people in a safe circumstance, that ought to be looked at.”

Sen. Sherrod Brown, an Ohio Democrat who also switched his stance from 2009, said he is waiting to see what Mr. Trump does.

“I just kind of re-examine it all the time,” he said. “I mean, it doesn’t really matter what my opinion is now; it matters what this president is going to look to do, and I don’t think he’s really spoken on it yet.”

In fact, Mr. Trump expressed strong support for Guantanamo on the campaign trail and vowed to begin restocking the prison with “some bad dudes.”

But advocates say, in Trump fashion, that he has sent mixed signals and they haven’t abandoned the hope that he will find a way to close the facility.

Mr. Dixon said a move is afoot to find ways to let remaining Guantanamo detainees plead guilty to charges and then send them to other countries to serve their sentences. He said Mr. Obama and Attorney General Loretta E. Lynch “inexplicably” failed to take advantage of that plan but that Mr. Trump has an opening.

“I wouldn’t write off Donald Trump when it comes every issue related to Guantanamo,” he said.

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