Obama and Congress Are One Step Closer to Closing Guantanamo Bay's Prison

The tide is turning in favor of President Obama's long-suffering bid to shut down Guantanamo Bay.

Obama issued an executive order to close the Cuba-based detention facility on the opening days of his presidency. Five years later, it remains open, a sharp reminder of the chasm between the idealism of campaigning and the harsh reality of governing.

But after years of setbacks, the president is making progress toward closing the base—and Congress is helping.

The administration is using the limited executive authority it has to move prisoners out. And following two and a half years in which the administration did not transfer any detainees, the last few months have seen a series of aggressive moves to transfer them elsewhere, dwindling Gitmo's population to 158 as of Dec. 20.

More importantly, perhaps, is a provision tucked into the latest National Defense Authorization Act that lifts transfer restrictions on detainees who have been cleared to leave and were never charged for a crime. The new rules allow them to return to their home countries or to certain other nations willing to receive them.

(Read all of Defense One's coverage on Guantanamo Bay here)

The ease in policy means clears a path for 79 detainees—half of the facility's remaining population—to leave under monitoring or other arrangements with their new host country. And many among the other half of the remaining detainee population are under review, which could lead to additional transfers.

So what breathed new life into previously floundering efforts to close the facility? In short: Dollars and cents.

At the behest of lawmakers, the Pentagon released new data this summer on the costs of Guantanamo Bay—and the totals far exceeded previous estimates. The U.S. has spent $5 billion on Guantanamo Bay since it started accepting prisoners in 2002. Right now, the facility costs the federal government an average of $2.7 million per prisoner per year

In a sequestered spending environment, that price tag is a red flag for those looking to conserve resources for defense programs deemed more vital.

Those cost concerns are changing the battle lines of the decade-old argument over the facility. Previously, closing Guantanamo was seen as an argument between defense hawks and civil libertarians. Obama and his allies argued the base—where neither the U.S. Constitution nor Cuban law applies—falls short of the standards of American society.

Those arguments carried only limited currency in Congress, particularly among defense hawks. But now that proponents of closing Gitmo can point both to ideological concerns and arguments that it's taking up funds that would be better spent elsewhere, many in Congress think the facility's days are numbered.

"The change in policy is significant," said Rep. Adam Schiff, D-Calif.. "What it reflects is that we are past the high water mark of support for Guantanamo and that support in Congress is on the decline… It's indicative of momentum to close the prison, but it is also an indication of how far we have yet to go."

Guantanamo spends about 80 times as much per prisoner as does a maximum-security federal prison, said Chris Anders, a senior legislative counsel with the American Civil Liberties Union.

"You have these numbers that are just are absurdly high and they had been hidden by the Defense Department for years," Anders said. "In lots of administration defense department visits to Senate offices and floor speeches those cost numbers were really highlighted, and I think for a lot of members of Congress who might not be as moved by the constitutional and human rights issue at Guantanamo Bay they are moved by the costs."

The expenses are especially significant expense considering 79 prisoners were cleared to leave four years ago.

And the costs of Gitmo's military commissions are far more inflated. They have resulted in seven convictions—two of which have been reversed—resulting in an expense of about $120 million per conviction, according to Anders.

To put that into perspective, Anders said, that's about 6,0000 times higher than the $18,000 average cost of a conviction in federal criminal courts in the U.S.

But despite recent signs of progress, Obama's long-term goal of closing the base still faces major hurdles.

Under a compromise negotiated between House and Senate Armed Services Committee leaders in the National Defense Authorization Act, Gitmo detainees remain banned from transfer to the United States to face trials or serve detention for another year. The legislation also bans the Defense Department from unleashing any funds to build or retrofit facilities in the U.S. to hold Gitmo detainees through the end of 2014.

Some 31 detainees have been slated for trials or military commissions, but criminal trials could not take place unless the transfer ban to the U.S. is lifted and military commissions could take years.

Only one Gitmo prisoner is serving time in the U.S.

"The work that still remains in order to actually close the facility will require that Congress lift the ban to bringing some of the detainees to the U.S. for trial," said Melina Milazzo, a senior policy counsel with the Center for Victims of Torture. "That's going to be a hurdle that the next congress or future congresses are going to have to deal with."

The Republican-controlled House voted to maintain the status quo of indefinite detentions in June before having to compromise with the Democratic-controlled Senate on a final bill in December.

Senate Republicans in November failed to find 60 votes to block Senate Armed Services Committee Chairman Carl Levin's plan to ease transfer restrictions. But many Republicans remain convinced that allowing transfers out of Guantanamo Bay, particularly to the U.S., puts national security at risk.

"While calling for the closure of Guantanamo Bay makes a great campaign talking point, doing so will undermine good intelligence collection and increase the risk that the dangerous detainees who are held there will be back on the streets plotting to kill Americans," said Sen. Saxby Chambliss, R-Ga., in November. "Yet, for over four years, the president has stubbornly failed to offer any viable, long-term detention and interrogation policy for current and future Guantanamo detainees so that we can collect intelligence and keep terrorists from returning to the fight.".

The political obstacles to closing the Guantanamo Bay detention center are not insignificant.

"Obama chose not to spend the political capital he needed to get it done in the first two years when Democrats controlled the House and Senate," said Cully Stimson, a senior fellow in national security with the Heritage Foundation.

He pointed out that next year is an election year and if Republicans take control of the Senate, additional policy changes towards closing Gitmo—like allowing transfers to the U.S.—will be hard to pass.

"The long pole in the tent is what additional rights, if any, would detainees get if they came to the U.S.?" Stimson said. "I do not see any viable presidential candidate adopting the platform of transporting terrorists from Guantanamo Bay into the United States."