Congress, White House on Collision Course Over Guantanamo

Another year, another White House threat to veto the annual defense authorization bill over Guantanamo. But this time, it just might happen.

For the past few years, the Obama administration has railed against GOP efforts to use the National Defense Authorization Act, or NDAA, to block President Obama’s drive to shutter the detention facility at Naval Station Guantanamo Bay. Yet either through signing statements or moderate compromises, it’s never come down to a veto of the mammoth, “must-pass” legislation. But this year, in what is realistically Obama’s last chance to shut Gitmo down, Republicans are using their control of both chambers of Congress to push language that would kill the effort once and for all.

“This Administration has repeatedly objected to statutory restrictions that impede our ability to responsibly close the detention facility and pursue appropriate options for the remaining detainees,” White House spokeswoman Jen Friedman said in a statement to Defense One on Monday. She repeated the warning issued before the House Armed Services Committee’s markup of the fiscal 2016 NDAA last week. “Instead of removing unwarranted and burdensome restrictions, H.R. 1735, as drafted, would extend current restrictions and impose onerous additional ones.”

The National Security Council declined to say directly whether Obama would veto the $612 billion bill as drafted by HASC, but the veil over the threat is thin. Friedman called the committee’s markup an “early step in the NDAA process,” and urged a bipartisan effort in Congress “to make necessary changes to the bill so that the President is able to sign it.”  

HASC’s markup previewed what is likely to be Congress’s final showdown with the Obama administration over Guantanamo.

Ranking Member Rep. Adam Smith, D-Wash., introduced a seven-word amendment to strip from the bill an effective ban on closing Guantanamo: “Strike sections 1036, 1037, 1038, and 1039.” Smith predicted his amendment would be “brutally defeated,” and it went down by voice vote to vocal Republican opposition. Some 18 hours into the markup session, the committee passed its full NDAA draft around 4:30 a.m. by a 60-2 vote.

The final legislation would retain existing restrictions that prohibit the Defense Department from using funds to transfer detainees to the United States, even for trial or medical treatment. It also continues to block any funds from being used to modify or construct facilities for the Defense Department to hold detainees on U.S. soil.

Yet it goes further, prohibiting any transfer of detainees to a “combat zone” — using an expansive IRS definition, inserted by HASC Chairman Mac Thornberry, R-Texas, that is intended to identify areas where deployed service members can receive tax breaks. That includes countries that have taken in Guantanamo detainees, such as Albania, Bosnia-Herzegovina, and Jordan, as well as Saudi Arabia, which hosts one of the most intense deradicalization and reintegration programs for former detainees.

It also would reinstate language from the 2013 NDAA that has since been stripped out, requiring certain certification procedures before transfers, though the Obama administration has adopted a standard by which such moves are unanimously approved by an inter-agency group of the Defense, State and Justice Departments, as well as Homeland Security, the Joint Chiefs of Staff, and Office of the Director of National Intelligence. Thornberry said the measure would rescind Obama’s authority to “unilaterally transfer detainees,” though his draft does provide a national security waiver.

The HASC NDAA also would prohibit the U.S. from ending the lease of the U.S. Navy base that houses the facility on loan from Cuba.

The measures would effectively freeze the prison, though 57 of the 122 detainees who remain there have been cleared for transfer. They basically “make it impossible to close Guantanamo,” Smith said around 2 a.m. during the markup, the Miami Herald reported.

Obama has registered his opposition to language contained in the past several years’ NDAAs in signing statements, such as the one administration officials relied on in part to defend not notifying Congress 30 days before the controversial “Taliban Five” swap of five Guantanamo detainees for former prisoner of war Bowe Bergdahl.

“I know that in signing previous NDAA bills, the President has included signing statements and has raised concerns with some of the proposals that were included in the bill,” White House spokesman Josh Earnest said after the markup last week, when asked about the Guantanamo measures. “But this is just the beginning of the process.”

Yet Thornberry proposed that 25 percent, or $485 million, of Defense Secretary Ash Carter’s budget be withheld due to feet-dragging from the Justice Department and Defense Department on certain documentation, particularly regarding the legality of the Bergdahl swap. At the same time, the legislation approves $76 million for a new housing facility at Guantanamo requested by SOUTHCOM Commander Gen. John Kelly on an unfunded priorities list, though the Pentagon and White House oppose the project.

Several Republican senators who have introduced new legislation that would impose a full two-year ban on any transfers, as well as other restrictions included in HASC’s NDAA draft, have similarly demanded more information on detainees who were transferred and are believed to have returned to the fight.

The House is expected to consider the NDAA on the floor Tuesday or Wednesday of next week, HASC spokesman Claude Chafin told Defense One. The Senate Armed Services Committee will begin its consideration as well, with a full committee markup — behind closed doors — on May 13. Three SASC subcommittees will hold open-door markups.