White House Won’t Rule Out Vetoing Defense Authorization Bill (Again) Over Guantanamo

President Obama may veto the annual defense authorization bill for the second time in his administration over its strictures on his push to close the U.S. military prison in Guantanamo Bay, Cuba, the White House warned Wednesday.

“This is language that we have seen congress include in the NDAA in previous years as well and we’ve made quite clear why that’s a really bad idea and why that has only served to make it more difficult for the president to succeed in closing the military prison at Guantanamo Bay, a national security priority this president campaigned on in 2008 and vowed in early 2009 to eventually get done,” White House spokesman Josh Earnest said. “The reason that hasn’t happened is we’ve seen obstacles thrown in our way by the U.S. Congress.”

“We’ll have to take a look at exactly what passes Congress before making a determination about what the president will sign,” he said, adding later, “At this point, I don’t have a veto threat to offer.”

But the new NDAA, which the House overwhelmingly passed Thursday by a vote of 370-58, has restrictions on Guantanamo that are identical to those in the previous bill. Lawmakers are setting up yet another showdown for Obama: veto the defense policy bill again, or punt on what may be his last, best chance to close the military prison in Cuba.

Obama vetoed the original fiscal 2016 bill on Oct. 22 primarily for its use of the Pentagon’s war funds, known as overseas contingency operations, to increase defense spending but dodge a fix to the budget caps. But he also specifically cited its impediment to shuttering Guantanamo.

“Guantanamo is one of the premiere mechanisms for jihadists to recruit,” Obama said as he wielded the veto pen. “It’s time for us to close it.”

A senior administration official said the President vetoed the first iteration of the NDAA, in part, because it kept restrictions on detainee transfers and added more. “It also further limited the Executive Branch's flexibility to determine where and when to prosecute and where and when to transfer detainees whose transfer is consistent with both national security and our commitment to their humane treatment,” the official said.

That veto was met with outcry from critics such as Senate Armed Services Committee Chairman Sen. John McCain, R-Ariz., who claimed Obama was holding the military “hostage” to make a political point. But after the veto, leaders in both chambers came to a two-year budget agreement that lifts the caps.

Obama signed that budget deal into law on Monday, and on Tuesday McCain and House Armed Services Committee Chairman Mac Thornberry, R-Texas — who together shepherded the NDAA through Congress — announced nearly $5 billion in cuts from the $612 billion spending blueprint in the original NDAA to bring it in line with the $607 billion budget deal. Thornberry then introduced the new NDAA — “otherwise identical,” according to the HASC and SASC joint statement, save the adjustment.

The Senate is expected to pass the reintroduced NDAA shortly after the House, according to McCain. Both he and Thornberry have made clear the broad policy provisions in the bill, in particular on Guantanamo, will not be changed. That means as early as next week, the defense bill could again be on the president’s desk.

The showdown comes as a logjam in the Defense Department’s final approval of transfers from Guantanamo to other countries has loosened. The Pentagon has moved a handful of detainees in recent weeks, with the latest  — the high-profile British citizen, Shaker Aamer — flown to London on Friday. The population now stands at 112, and more moves are expected in the coming weeks.

While the transfers continue to chip away at the population, the administration’s drafting of a much-anticipated plan to close the detention center has stagnated. Months after saying it was coming soon, and amid political outcry over site surveys in South Carolina, Kansas, and Colorado, the White House has yet to complete the plan and submit it to Congress. Earnest declined to comment on whether the plan would recommend those sites as potential alternatives to the facility in Cuba, a “Guantanamo North.”

Reports indicate it could come as soon as the next few days, but McCain, who supports closing Guantanamo, says he’s received no updates on the status of the plan — “of course not,” he said — and Earnest declined to comment on the timing.

“I don’t have a timeframe to put on it, it is obviously something they’ve been working on for quite some time,” Earnest said, noting that the administration’s approach to closing the facility is well known. “Congress will receive something thoughtful and carefully considered ... and it remains to be seen whether Congress will thoughtfully and carefully consider it.”

McCain says without the promised plan, the administration has left him little choice but to preserve the restrictions, including what Earnest acknowledged Wednesday was perhaps the largest obstacle: a ban on any transfers to the U.S. or any funds used to construct or modify facilities on U.S. soil to hold them.

But even if the plan came tomorrow, McCain says it wouldn’t make a difference.

“If they were to send a plan now, it’s too late — our defense bill is already done,” he told Defense One Tuesday. “It’s just unbelievable to me that all I’m asking for is a plan I can try and sell to my colleagues. And they refuse to send one, and then they complain about the fact that we’re not closing Guantanamo? It’s hypocrisy.”

The president has taken issue with restrictions on Guantanamo in each of the preceding defense bills under his administration, but has still signed them. And Congress has ultimately passed the legislation every year for the past 53 consecutive years.

But with Obama’s time as president waning, he has less leverage and political capital and increasingly more public attention is going to the 2016 election. Locking in the Guantanamo restrictions by signing them into law could effectively doom his last push to fulfill his promise.

That is, unless he is prepared to take unilateral executive action to transfer out the remaining detainees and close it, an option Earnest again declined to take off the table but also declined to confirm was within the president’s authority.

“At this point I would not take anything off the table in terms of the president doing everything that he can to achieve this critically important national security objective,” he said, adding, “I’m certainly not a lawyer … we would like to work with Congress where we can, but if Congress continues to refuse, I wouldn’t rule out the president using every element of his authority to make progress.”

This story has been updated.