Obama is now willing to wield his executive powers to get the job done. Obama goes rogue on Gitmo

President Barack Obama swore as far back as 2008 he’d close the U.S.-run prison for terror suspects at Guantánamo Bay.

Five and a half years later, he finally took a real risk to get that process moving.


The president defied Congress over the weekend, ignoring a 30-day notice rule required by law to greenlight the transfer to Qatar of five alleged members of the Taliban held at Guantánamo in exchange for the release of Army Sgt. Bowe Bergdahl in Afghanistan.

( Also on POLITICO: Criticism of Bergdahl deal mounts)

It’s Obama’s most assertive move to shrink Guantánamo’s population since U.S. embassy bombings suspect Ahmed Ghailani was flown from the island prison to New York City under cover of darkness on June 9, 2009.

And it sends a clear message: As liberals and some conservatives have long urged, Obama is now willing to wield his executive powers to get the job done.

“It was the judgment of the team and the president that there was enough urgency here to ensure that Sgt. Bergdahl was safely recovered that a 30-day window of hoping that that opportunity remained open was not an option. And ultimately, as commander in chief, the president had the responsibility to take the action he did,” White House press secretary Jay Carney said Monday.

( Also on POLITICO: McCain on Bergdahl: 'It's done')

National Security Adviser Susan Rice said the Justice Department and the Pentagon signed off on skipping the legally required notification. Still, that move didn’t sit well with some Republicans — with criticism of the swap only growing louder in the days since, particularly as reports resurfaced that Bergdahl may have voluntarily walked off his base unarmed in 2009.

“In executing this transfer, the President … clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantánamo Bay and to explain how the threat posed by such terrorists has been substantially mitigated,” Senate Armed Services Committee ranking member Sen. Jim Inhofe (R-Okla.) and House Armed Services Committee Chairman Buck McKeon (R-Calif.) said in a statement. “Our joy at Sergeant Bergdahl’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it.”

White House chief of staff Denis McDonough’s response: Members of Congress shouldn’t have been shocked by the swap.

( Also on POLITICO: Palin on Bergdahl: Obama 'blew it')

“We have been consulting with members of Congress about this effort, including the potential transfer of five Gitmo detainees, for years,” McDonough told a Center for Strategic and International Studies conference Monday. “So this should not have been a surprise to any of the members of Congress who have been … commenting about it. … When you’re commander in chief, you have to act when there’s an opportunity for action.”

The transfer of the five Taliban prisoners fulfilled — to an extent — a fantasy long held by Guantánamo closure advocates: that the president would take an important symbolic step toward closure by ignoring or overriding congressional restrictions piled on by lawmakers in recent years.

“Certainly [there are] practical reasons not to notify in this specific case,” said Ken Gude of the Center for American Progress. “But this is the first time they’ve followed through on their repeated separation-of-powers objections to the transfer restrictions. Hopefully, [there’s] more to come.”

“The Obama administration’s backbone on Gitmo and assertion of its executive branch prerogatives finally seem to have solidified,” American Civil Liberties Union Executive Director Anthony Romero said.

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Despite the GOP criticism the Bergdahl move has drawn, it’s also been relished by some conservatives, who view it as a retreat from the harsh criticisms of executive power Obama leveled at President George W. Bush and Vice President Dick Cheney during the 2008 campaign. Even after Obama took office, his president’s team went out of its way to make clear that he wouldn’t use his constitutional commander-in-chief authority to hold detainees at Guantánamo or in the United States.

“Some of us said when they were saying those things, ‘We’ll see,’” said Cully Stimson, who worked on detainee issues in the Department of Defense under Bush. “They’re now within the reality of: Where you sit is where you stand.”

Closure advocates hoped more such transfers would follow — and perhaps even a presidentially directed mass transfer of prisoners. As opposition to closure grew on Capitol Hill in the months and years that followed, some who favor closing the prison even held out hope for a Bulworth-like outburst of candor, followed by a dramatic move to shut down the facility.

After his reelection, Obama did indulge in a few pained public laments about the terror prison that wouldn’t die. But his policy moves toward closing were measured — and the bureaucracy’s response even more so.

But while the Berghdal swap demonstrated a willingness on Obama’s part to buck Congress on detainee-related issues, it remains unclear whether the president is prepared to do so when the trade-offs don’t involve the release of a long-held American soldier but the more amorphous benefits some expect from closing or simply shrinking the population at Guantánamo.

On that front, a year after Obama promised to reinvigorate his efforts to close the island prison, the drive has made only meager progress, and the prospect of shutting down the facility still seems remote.

The president and his aides say he remains committed to shutting down Gitmo, but the subject garnered only a single sentence when he laid out and defended his foreign policy vision in a speech at West Point last week.

“I will continue to push to close Gitmo — because American values and legal traditions do not permit the indefinite detention of people beyond our borders,” the president declared.

Even those few words managed to grate on many in the Guantánamo debate by alluding to, but sidestepping, a central question: What problem is solved if the U.S. changes the place it keeps detainees, but still keeps on holding them?

“So, it should be OK under American values to have indefinite detention inside the U.S., but not outside?” the ACLU’s Chris Anders said. “That’s a meaningless distinction in terms of values and law. … That’s a plan to move Guantánamo, not close it.”

“I don’t follow that at all,” Stimson said of Obama’s Gitmo comments at West Point. “It is not ‘indefinite detention.’ It is military detention until the end of hostilities. … [And] he is not some hapless helpless bystander. He decides whom to capture, whom to transfer and whom to release,” added Stimson, now at The Heritage Foundation.

Guantánamo seemed to fall off the presidential radar not far into Obama’s first term. After his pledge to close the facility within a year encountered heavy resistance in Congress, he retreated and acquiesced in legislation that made the prison all but impossible to empty.

However, in an April 2013 news conference, Obama sounded anguished about the plight of the Guantánamo detainees, dozens of whom were then on a hunger strike protesting their detention.

“The notion that we’re going to continue to keep over a hundred individuals in a no-man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan … the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop,” Obama told reporters then. “Why exactly are we doing this? Why are we doing this?”

“History will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it,” the president added during a six-minute discussion of Guantánamo he included in a major speech at National Defense University a few weeks later.

Soon after those high-profile presidential pledges to dive back into the effort, there was a flurry of activity.

Obama named new envoys for the Guantánamo issue at the State Department and the Pentagon and tapped counterterrorism adviser Lisa Monaco as the White House’s point person on Guantánamo. And late last year, Congress slightly loosened restrictions on transfers of prisoners out of Guantánamo.

Still, there has been no exodus from Gitmo. In 2013, 12 prisoners were released. So far this year, only the five sent to Qatar in exchange for Bergdahl have been transferred, leaving 149 men in custody at Guantánamo.

In his speech last May, the president touted his decision to lifted a moratorium he imposed several years earlier on the release of prisoners to Yemen. But no one has actually been sent there since the ban was ostensibly lifted. There have been moves to set up a United Nations-backed rehabilitation center in Yemen, but the country remains so chaotic that the government’s ability to keep tabs on men the U.S. might transfer there seems doubtful.

The military commissions process for trying alleged war criminals at Guantánamo has spent the past year struggling to recover from a series of problems, including microphones hidden in defense meeting rooms, a courtroom mute button reportedly controlled by the CIA rather than the judge, and the FBI’s attempt to enlist a defense security consultant as an informant.

A separate and long-stalled administrative review process for detainees ordered by Obama in 2011 finally got off the ground last fall, grinding through six cases in six months. As a result, three of those men have been added to the cleared-for-transfer list.

Some say the administration has often confused effort with progress.

“They feel good and proud of the changes they’ve made and the new activity. … But it still hasn’t hit a significant dent in the population,” Anders said.

Officials involved in the process admit frustration that more prisoners haven’t been transferred. Some delays have stemmed from Defense Secretary Chuck Hagel not acting quickly to sign certifications that the dangers of transfers have been mitigated.

“My name goes on that document, that’s a big responsibility,” Hagel told reporters last week. “I have a system that I have developed, put in place to look at every element of, first of all, complying with the law. Risks, mitigation of risks, does it hit the thresholds of the legalities required?”

The White House recently signaled some dismay with the Pentagon’s pace on detainee issues by sending the defense secretary a directive recently requiring biweekly reports on transfer plans. A senior administration official who asked not to be named said the memo to Hagel, first reported by The New York Times, “is meant to streamline the transfer process.”

One new legislative opening administration officials are welcoming is the Senate Armed Services Committee’s adoption of a somewhat convoluted measure that would allow Obama to propose a plan to achieve closure at Guantánamo and give Congress the right to try to shoot it down.

But there had already been resistance in the House and Senate to a proposal that would effectively require a two-thirds majority of both houses to upset a plan that a simple majority has been able to block up to this point.

“Bringing members of Al Qaeda and its affiliates to our homeland and telling them they have a right to remain silent defies common sense, represents a serious national security risk, and prevents us from collecting the intelligence we need to prevent future terrorist attacks and save American lives. I will continue to help lead efforts in the Senate to oppose any effort to close Guantánamo and bring the detainees there to the U.S.,” Sen. Kelly Ayotte (R-N.H.) said in a statement.

Last month, the White House threatened a veto of legislation that would make it harder to close Guantánamo, but the threat had limited credibility since Obama has signed bills in past years containing restrictions of that sort.

Indeed, the latest threat hasn’t fazed House leaders. An appropriations bill the House passed Friday contains language aimed at making it impossible to bring detainees to the United States. Curiously, the White House didn’t threaten a veto over that language, saying only that the administration “strongly objects” to the provisions.

Administration officials insist the tide is turning in Congress and that other factors are also building momentum, albeit slowly, toward closing Gitmo.

Just Wednesday, officials confirmed that Yemeni Ghaleb Al-Bihani was moved from the indefinite detention list to the cleared-for-transfer roster. At that point — prior to the Bergdahl transfer — and for the first time in recent months, more Guantánamo prisoners were cleared to leave the island (78) than are slated for continued detention or trial (76).

Still, the lengthy list of cleared prisoners underscored the trouble in finding places to send the men the U.S. no longer wants to hold. Of the 78 detainees cleared for release, 56 hail from Yemen. A provision in the same Senate Armed Services Committee bill would ban transfers to that country for one year.

Meanwhile, judges have been getting more restless on Guantánamo, intruding into procedures there in a way implausible a decade ago. One halted more intrusive searches of prisoners’ groin areas being conducted before legal visits and phone calls last summer, though an appeals court stayed the order.

Another judge blocked force-feeding of a hunger-striking Gitmo prisoner for several days this month, before taking a shot at the Pentagon while allowing the practice to resume out of fear that the inmate might die.

There are also questions about the legal basis for holding the detainees eroding as the U.S. ends its combat role in Afghanistan. Obama has stoked those concerns by describing Guantánamo as a prison that was created because of the war in Afghanistan and that should close as the war winds down.

“It certainly brings this issue to a head,” said Daphne Eviatar of Human Rights First. “At some point, someone’s going to have to make a courageous decision to figure out what to do with these men.”

The administration believes that whittling down the Guantánamo population will make closure more manageable. But some experts say that Obama needs to publicly reconcile his rhetoric against indefinite detention with other statements that some detainees are too dangerous to release.

“When people question what to do with people you can’t try and can’t release, his only answer to that question is that we need to recommit ourselves to close Guantánamo and the problem will take care of itself. But the answer is, it won’t,” the Brookings Institution’s Ben Wittes said. “The more you do, the harder it gets. The problem of what to do with the last 75 or 100 people is not just a problem of political will. It’s a problem of not having good answers to those problems.”

Despite the daunting challenges, Obama said in an interview last week, before the Bergdahl-linked detainee transfer, that he’s determined to make closing Guantánamo part of his legacy.

Asked if it will be among the problems he leaves to his successor, the president told NPR: “Not if I can help it. … I want to make sure that when I turn the keys over to the next president, that they have the ability, that he or she has the capacity to make some decisions with a relatively clean slate. Closing Guantánamo is one.”

CORRECTION: Corrected by: Jennifer Shutt @ 06/02/2014 08:24 PM CORRECTION: An earlier version of this story misstated the number of detainees transferred from Guantanamo this year.