Is This Obama’s Last Chance to Close Guantanamo Bay?

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 White House 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 has 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 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-to-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, 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, Jordan, and 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 in­ter­agency 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 United States 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.