- The Washington Times - Sunday, May 4, 2014

Transfers from the Guantanamo prison compound — sharply restricted since 2011 by lawmakers worried about detainees returning to the battlefield — have picked up again in recent years as Congress relaxed some mandates and President Obama found ways to send some inmates home.

But with another defense policy bill and November elections looming, there is little prospect of any more loosening of controls this year, analysts say.

“I don’t think they’re going to be seeking any changes with respect to detainee transfers, in large part because what I think were overly restrictive transfer provisions from previous years were relaxed last year,” said Cully Stimson, a senior fellow at the Heritage Foundation who served as deputy assistant secretary of defense for detainee affairs under President George W. Bush.

Mr. Obama campaigned in 2008 on a promise of closing the detention facility in Cuba, which Mr. Bush opened soon after the war on terrorism began in 2001. One of Mr. Obama’s first acts as president was to set a one-year deadline for closing the prison, but he has continually been frustrated by Congress — including members of his own Democratic Party.

With no restrictions in place, Mr. Obama made early headway by transferring 49 detainees during his first full year in office and 19 in 2010, according to data compiled by The New York Times.

But shutting down the facility entirely proved more difficult than he expected, largely because some home countries refused to take cleared detainees, said Stephen Vladeck, a law professor at American University Washington College of Law.

“He had a bit of a window where there was no statutory impediment toward closing Guantanamo,” he said. “The administration encountered more diplomatic resistance than it expected, then the ability to transfer became that much harder after restrictions were in place.”

The first of those [legislative] restrictions was imposed in the annual defense policy bill approved in late 2010, when Democrats controlled both houses of Congress. Those restrictions prevented any detainees from being transferred to the U.S. and allowed transfers to other countries only if ordered by a court.

No one was transferred in 2011, and just four detainees were transferred in 2012.

With hundreds of detainees languishing, the administration pleaded for changes. Congress agreed in the 2013 defense policy bill, which required the administration to submit a risk assessment of the detainee’s return to terrorist activities and to reach a security agreement with the country taking back the detainee. The ban on transfers to the U.S. remains in place.

Eleven detainees were transferred in 2013, and one has been removed from Guantanamo Bay so far this year. Algerian detainee Ahmed Bin Saleh Belbacha, the last of four Algerians at the camp, was released in March. It was the first release in more than three months, when the Pentagon announced that Noor Uthman Muhammed and Ibrahim Othman Ibrahim Idris were returned to the government of Sudan.

That left 154 detainees as of March. Of those, 70 have been cleared for transfer, said Chris Anders, senior legislative council for the American Civil Liberties Union.

“We’re hoping that the pace of the transfers overseas of cleared detainees picks up, but there are a lot of steps that the secretary of defense has to go through before a transfer is done,” Mr. Anders said. “All this is a long process, which is particularly unfair for the detainees who have been cleared and have no reason to be sitting in a prison for 12 years.”

What is not likely to change are the restrictions set by Congress.

Mr. Stimson said the majority of lawmakers think the rules are lenient enough, and Mr. Anders said he doubts Congress would tackle such a thorny issue just before elections.

Ken Gude, a senior fellow at the Center for American Progress, said the prospect of Democratic losses in the House and Senate in November suggests that the prospect of closing Guantanamo for good as Mr. Obama promised may slip further into the future, no matter who succeeds Mr. Obama in 2017.

“Closing Guantanamo requires a significant investment of political will and capital,” Mr. Gude wrote last month, “and it is unlikely that any new president would elect such a course following the eight years of failure and pain of the Obama administration, especially when the political payoff is so low.”

Guantanamo opponents, who argue that the continued existence of the camp complicates the ability to work with allies and does not aid the U.S. in the war on terrorism, said that shouldn’t be an excuse for not acting.

Rep. James P. Moran, Virginia Democrat, tried to erase some of the transfer restrictions last week. He offered an amendment to the military construction spending bill in the House that would have let the Obama administration build a replacement prison in the U.S.

His amendment was easily defeated on a 249-168 vote.

“It seems to me we have a compelling case, but the members are more interested in the level of ignorance of their constituencies than in some cases showing the kind of leadership I wish they would,” Mr. Moran said. “Most of the members know what the right thing to do is, but they know how their constituents are going to perceive it.”

Rep. John Abney Culberson, Texas Republican and chairman of the House Appropriations military construction subcommittee, led the opposition to Mr. Moran’s amendment. He said lawmakers are comfortable with where things stand.

“I do not expect any changes in current law because the country and a clear majority of the House oppose changing our current policy toward terrorist detainees held at the detention facility at Guantanamo Bay,” he said in a statement.

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